Smt. Malan Maruti Patil And Ors vs Smt. Shital Babasaheb Gat And Anr
2023 Latest Caselaw 2622 Bom

                                                                     905 SAst 2429.23+IA 2386.doc


                      Dusane

BHALCHANDRA                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GOPAL
DUSANE                            CIVIL APPELLATE JURISDICTION

                                 SECOND APPEAL (ST.) NO.2429 OF 2023
Digitally signed by
BHALCHANDRA
                                               WITH
GOPAL DUSANE
Date: 2023.03.18
16:44:32 +0530
                                INTERIM APPLICATION NO.2386 OF 2023


                      Smt. Malan Maruti Patil & Ors.              ...Appellants

                              V/s.
                      Smt. Shital Babasaheb Gat & Anr.            ...Respondents



                      Mr. Manoj Patil i/by Mr. Ashish P. Pawar for
                      Appellants.

                                                CORAM: MADHAV J. JAMDAR, J.

DATE: 17th MARCH 2023

P.C.:

1. Heard Mr. Patil, learned Counsel appearing for the

Appellants.

2. The Appellants original Defendants Nos. 1 to 3 are

challenging the legality and validity of the impugned judgment

and decree dated 5th March 2020 passed by the learned Joint

Civil Judge, Senior Division, Ichalkaranji in Special Civil Suit No.

25 of 2013 as well as judgment and decree passed by the

learned First Appellate Court dated 4th May 2022 in Regular Civil

Appeal No. 35 of 2020.

905 SAst 2429.23+IA 2386.doc

3. Both the learned Courts have recorded concurrent finding

that the Respondent No.1- Plaintiff has proved that the

Defendant Nos. 1 to 3 agreed to sell the suit property to the

Plaintiff for total consideration of Rs.16,00,000/- and received

earnest money of Rs.15,00,000/- and executed the agreement

for sale on 18th June 2012.

4. Both the Courts have concurrently held that the execution

of said agreement is proved, payment of Rs.15,00,000/- is

proved and that the Plaintiff has proved his readiness and

willingness.

5. In fact, said payment of Rs.15,00,000/- is an admitted

position. Only the contention of Mr. Patil is that the said

document is fabricated and said amount of Rs.15,00,000/- were

paid towards business loan. However, evidence on record clearly

shows that the agreement dated 18th June 2012 was executed

and part consideration of Rs.15,00,000/- were paid.

6. Mr. Patil submitted that if the evidence on record of PW-2,

Shivaji Mithari is seen then it cannot be held that the agreement

is proved. However, both the Courts after considering his

evidence has held that the said agreement is proved.

7. The learned Trial Court in paragraphs 26 and 27 discussed

about evidence of PW-2. The said paragraphs read as under:

905 SAst 2429.23+IA 2386.doc

"26. However, Shivaji Mithari (P.W. 2) even though cross examined at length, he is not confronted in whole cross-examination the agreement to sell (Exh.41) and no suggestions is putforth to this witness that this agreement dtd. 18.06.2012 was not executed at any point of time either by deceased Maruti Patil or Defendant no. 1 to 3.

27. It is settled law that evidence of a witness is to be read in whole and not scattered. On scrutiny of entire evidence of a witness only, it can be said that either the testimony of the witness is not believable or is believable. On scrutiny of the evidence of the Plaintiff and his witness, it notices that their testimony is not shaken anywhere."

(Emphasis added)

8. Both the Courts have concurrently held that the execution

of agreement is proved as well as payment is proved. Therefore,

there is no substance in the substantial questions of law raised

by Mr. Patil.

9. The Second Appeal is dismissed with no order as to costs.

10. In view of dismissal of the Second Appeal, nothing survives

in the Interim Application, the same is also disposed of.

(MADHAV J. JAMDAR, J.)