Bombay High Court
Life Style Green City Pvt. Ltd. ... vs Pyarelal S/O. Madhaoprasad ... on 24 March, 2023
Bench: Avinash G. Gharote
wp 1881.23. 1/7 4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1881/2023
(Life Style Green City Pvt. Ltd. and others V Pyarelal (dead) thr Lrs and others)
*************************************************************************************
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
*************************************************************************************
Mr. S.S. Sitani, Advocate for petitioners.
CORAM : AVINASH G GHAROTE, J.
DATE : 24-03-2023
Heard learned Counsel for the petitioners.
2. This is the petition by the original
defendant. The petition challenges the order below
Exh-5 dated 07-02-18 passed by the learned trial Court,
holding that the respondent/plaintiff is in possession of
the land of Kh. No. 65, adm 0.73 HR and Kh. No.66,
adm. 0.70 HR total 1.43 HR situated at Mouza Tidangi,
Tah. Kalmeshwar, Dist-Nagpur and restraining the
petitioner/defendant from disturbing the possession of
the plaintiff/respondent over the suit property till the
disposal of the suit, and so also the judgment of the
appellate Court dated 09-03-23, dismissing the appeal
confirming the finding and order rendered by the trial
Court.
3. Mr Sitani, learned Counsel for the
petitioners, contends that both the Courts below do not
wp 1881.23. 2/7 4
take into consideration that the electricity bill for the
construction on the suit land is being paid by the
petitioners, and so also the Talathi report dated
15-10-2017 and therefore has incorrectly arrived at the
finding. It is also contended that the learned appellate
Court has not considered the spot panchanama given
by the Gram Adhikari, Kalmeshwar (pg 222), which
according to him shows the petitioners to be in
possession and also the fact that after the sale deed the
petitioners have constructed a swimming pool upon the
aforesaid lands.
4. It is also not disputed that on account of the
balance consideration of Rs.6,52,000/- a cheque bearing
no. 534489 dated 20-7-2016 drawn on ING Vyasya Bank
Ltd, Nagpur was handed over to the petitioner no. 1.
5. The contention is that the cheque dated
20-7-16 for Rs. 6,52,000/- was taken back on the
pretext of replacement, and also the possession of the
property in question not delivered by the petitioners to
the respondent. It is also contended that the original
title deed is still with the petitioner no.1. Based upon
these submissions, it is contended that the concurrent
findings rendered by the Courts below, are required to
be quashed and set aside and it be held that the
wp 1881.23. 3/7 4
petitioner no.1 is in continuous possession of the lands
in question and Exh-5 be rejected.
6. It is not in dispute, that the respondent
no.1 was the owner of the aforesaid lands. The
execution and registration of the sale deed dated
20-4-2015 by the petitioner no.1 through the petitioner
no. 2 who is the Director of petitioner no.1 in favour of
respondent (pg 87) is also not disputed. He also not
dispute that under the sale deed, the amount of Rs. 2
lacs was received by petitioner no.1. In sum and
substance, the entire execution and registration of the
Sale Deed dated 20-4-15 is not disputed by the
petitioners.
7. The petitioner no.1 has also filed a suit
which is bearing Spl.C.S. No.811/17 for cancellation of
the sale deed dated 20-4-15, which is pending.
8. The contention that the electricity bills, for
the construction made upon the suit property have been
paid by the petitioners, in my considered opinion,
cannot be a singular factor to hold that the petitioner is
in possession. The electricity department, is notorious
for not changing the holdings of the meter in the name
of the transferee, which continues for years together and
this factor by itself cannot have the effect of
demonstrating that the petitioners are in possession.
wp 1881.23. 4/7 4
The report of the Talathi which is sought to be relied
upon does not indicate on what basis it was given and
therefore clearly lacks credibility.
9. Though it is contended that the amount
Rs.6,52,000/- has not been received by the petitioner
no.1, it is not disputed that a sum of Rs. 6,52,000/- has
been credited in the account of the petitioner no.2 by
RTGS on 24-8-17. Since the execution and registration
of the sale deed itself has not been disputed by the
petitioners, it naturally follows that the averments made
in the sale deed stands admitted. In the light of this
position, though the sale deed is dated 20-4-15 and the
cheque was dated 20-7-16, which is claimed to have
been taken back under the pretext of issuing a new one,
there is no objection or communication in this regard by
the petitioner no.1 to the respondent during this entire
period from 20-4-2015 till 20-7-2016 which is a
substantive period of time, which would indicate that
the plea raised, that the said cheque hand over at the
time of sale deed was taken back is clearly
unsubstantiated. It would therefore be apparent that in
absence of any objection in this regard has to be held
that the cheque was received by the petitioner no.1 at
the time of execution and registration of the sale deed.
Once the vendor received a cheque for the balance
consideration, the responsibility of putting it for
encasement is that of the vendor and not of the
wp 1881.23. 5/7 4
purchaser. That apart, the terms of the sale deed do not
indicate that the title could stand transferred upon
encashment of cheque. On the contrary the terms of
the sale deed indicates immediate transfer of title. There
is also categorical term in the sale deed in respect of
respondent being placed in actual and physical
possession of the property in question on the date of the
sale deed itself. The sale deed being a duly registered
instrument has a presumptive value in law. In order to
rebut this presumption, strong material has to be placed
on record by the petitioner/ vendor. In the instant case,
except for the electricity bill and the Talathi certificate,
as discussed above, there is no other material on record.
Though, Mr Sitani, learned Counsel for the petitioners,
has sought to place reliance upon a spot panchanama,
dated 8-2-18 (pg 222) on record to contend that even
after the sale deed dated 20-4-15, it is the petitioners
who have constructed a swimming pool on the suit
property, the application under Order 41 Rule 27 of the
Code of Civil Procedure, for placing the panchanama on
record has been rejected by the appellate Court and
therefore this cannot be a document which can be taken
into consideration at this stage. That apart, the
construction of swimming pool would naturally require
a contract to be made in between the petitioner and the
expert agency for erection of the same. Such a
document is also not placed on record, in view of which
this contention also cannot be accepted.
wp 1881.23. 6/7 4
10. The learned trial Court in the order dated
07-02-18 has considered the terms of the sale deed
and also the electricity bills and the certificate issued by
the Talathi, and in my considered opinion, has rightly
arrived at a finding of the possession is being delivered
under the terms of the sale deed dated 20-4-15 to the
respondent.
11. The appellate Court has also rightly
observed that the plea raised by the petitioners, that
the cheque of Rs 6,52,000/- was paid along with the
sale deed, but was taken away thereafter under the
pretext of changing the same in some other instrument
is also unbelievable, in absence of any communication
in that regard by the petitioners. It is inconceivable that
in case the cheque for the balance consideration of
Rs.6,52,000/- was taken away by the respondent under
the pretext of changing it with some other instrument,
the petitioners, would have kept quite and not taking
any action against the respondent in that regard. This
would clearly indicate that the plea of the cheque not
being given for the balance consideration to the
petitioners along with the sale deed is clearly unworthy
of credence.
12. Considering the above position, I therefore
do not see any reason to interfere in the order below
Exh-5 passed by the trial Court as well as the judgment
wp 1881.23. 7/7 4
of the appellate Court. The petition is therefore without
any merit. Hence, the same is dismissed. No costs.
JUDGE
Deshmukh
