Mr. Balaram S Parkar vs Mrs. Suvarna R. Gudekar
2023 Latest Caselaw 11528 Bom

2023:BHC-AS:34926

                                                            17_ia_10191_2022.odt

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                      SECOND APPEAL NO.488 OF 2022
                                                 WITH
                                  INTERIM APPLICATION NO.10191 OF 2022
                                                   IN
                                      SECOND APPEAL NO.488 OF 2022

               Balaram Shantaram Parkar                               ...Applicant
                                      Versus
               Mrs. Suvarna Ramesh Gudekar                           ...Respondent
                                                 ...
               Mr. Amod Eklaspur with Ms Dhanashree Gaikaiwari i/b. M/s. Bilawala
               and Co. for the Applicant.
               Mr. Sagar G. Talekar for the Respondent.


                                                CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED: 8th NOVEMBER, 2023.

P. C. :-

1. By this second appeal, under Section 100 of the CPC the

Appellant, who was the Defendant in the suit has challenged the

judgment and order dated 04/03/2022 passed by the Extra Joint

District Judge, and Additional Sessions Judge, Mangaon-Raigad in

Regular Civil Appeal No.40 of 2016. By the impugned judgment, the

learned District Judge dismissed the appeal filed by the Appellant

herein and confirmed the judgment and decree dated 18/01/2016

passed by the learned Civil Judge, Junior Division, Mangaon, in

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Regular Civil Suit No.50 of 2011.

2. The dispute is in respect of dwelling house No.405(214)

admeasuring 338 sq.meter, situated at Chinchavali Wadi, Mangaon,

District-Raigad. The said house shall be hereinafter referred to as 'the

suit premises'.

3. The Appellant is the Defendant and Respondent is the

Plaintiff in the suit and shall be hereinafter referred to as 'Defendant'

and 'Plaintiff' respectively. The Plaintiff and her husband were

admittedly the owners of the suit premises. The Plaintiff claims that

she was unwell and she alongwith her children shifted to Indapur.

She has stated that her husband was alcoholic. Taking undue

advantage of the said fact, the Defendant trespassed into the suit

premises. Her husband died on 29/06/2004. The Plaintiff called

upon the Defendant to handover possession of the suit premises.

However, he claimed that he had purchased the same. The Plaintiff

called upon the Defendant to furnish her the relevant documents

and /or to vacate the premises. The Defendant failed to furnish the

documents and refused vacate the premises and hence the suit came

to be filed for recovery of possession.

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4. The Defendant claimed that he had entered into an

agreement dated 06/12/1995 and agreed to purchase the suit

premises for sale consideration of Rs.30,000/-. He has stated that he

was always ready and willing to complete the sale transaction. The

Defendant raised a counter claim seeking specific performance of the

sale agreement dated 06/12/1995.

5. The learned Trial Judge framed the issues and upon

considering the evidence adduced by the respective parties has

recorded a finding that the Plaintiff is the owner of the suit premises.

The learned Judge has also observed that the Defendant has failed to

prove that he had entered into an agreement for sale with the husband

of the Plaintiff and further that the Defendant was ready and willing

to perform his part of the contract. Hence, the learned Judge decreed

the suit and dismissed the counter claim filed by the Defendant. Being

aggrieved by the said judgment and decree the Defendant filed an

appeal before the first Appellate Court.

6. The learned Judge has confirmed the findings that the

Plaintiff is the owner of the suit premises. The learned Judge also

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recorded a finding that the Defendant has failed to prove the

agreement for sale dated 06/12/1995 or that he was ready and willing

to perform his part of the contract and hence dismissed the appeal.

Being aggrieved by this judgment and order, the Defendant has filed

this appeal under Section 100 of the CPC challenging the concurrent

findings rendered by the Courts below.

7. It is not in dispute that the Plaintiff is the owner of the suit

premises. The Defendant claims right to the suit premises by virtue of

an unregistered agreement dated 06/12/1995. The Defendant has

failed to prove execution of the agreement and payment of sale

consideration. Be that as it may, undisputedly, the Defendant had

failed to seek enforcement of the agreement for over 15 years and

consequently failed to prove that he was ready and willing to perform

his part of the contract. The Defendant has not been able to show that

he has any right, title or interest to continue to be in possession of the

suit premises. Under the circumstances, the findings recorded by the

courts below are not perverse and do not warrant interference. No

substantive question of law is involved. Hence, the appeal is

dismissed.

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8. In view of dismissal of the appeal, the interim application

does not survive and hence stands disposed of.

                                      (SMT. ANUJA PRABHUDESSAI, J.)




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