Bombay High Court
Smt. Malubai Maruitrao Jirge vs Smt. Vijaylaxmi Vishwasrao Mohite ... on 5 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:7463
rsk 25-SA-240-15-F12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.240 OF 2015
WITH
CIVIL APPLICATION NO.87 OF 2018
Malubai Marutirao Jirge ....Appellant-Applicant
Versus
Vijaylaxmi Vishwasrao Mohite (Decd. Thr.
Legal heirs) ....Respondent
Mr. G.S. Godbole, Senior Advocate a/w. Mr. V. B. Rajure for the
Appellant-Applicant.
Mr. Pralhad Paranjape a/w. Mr. Manish Kelkar for Respondent No.1.
CORAM : SHARMILA U. DESHMUKH, J.
DATED : 5th FEBRUARY, 2024.
P. C. :
1. At the outset learned Senior advocate appearing for the
appellant tenders draft amendment incorporating additional substantial
questions of law. Draft amendment is taken on record.
2. Being dissatisfied by the judgment of the Appellate Court
dated 16th August 2014 passed in Regular Civil Appeal No.75/2011
dismissing the appeal thereby confirming the judgment and decree of the
Trial Court dated 24th December 2010 passed in Regular Civil Suit
No.456/2006 the original plaintiff is before this Court. For sake of
convenience the parties are referred to by their status before the Trial
rsk 25-SA-240-15-F12.doc
Court.
3. Regular Civil Suit No.456/2006 was instituted seeking
specific performance of agreement of sale dated 20 th March 1975. The
plaintiff No.1 is the widow and plaintiff Nos.2 to 5 are the children of
deceased Marutirao Jirge, who expired on 25 th May 2009. Defendant
Nos.1 to 7 are the legal heirs of one Vishwasrao Pandurgang Mohite.
According to the plaintiffs, the suit property was owned by deceased
Vishwasrao Mohite and the said deceased Vishwasrao Mohite agreed to
sell the suit property to the deceased Marutirao Jirge at the rate of Rs.2/-
per sq. ft. aggregating to Rs.4,800/-. That, on 20 th March 1975 a sum of
Rs.4,400/- was accepted as part consideration by the deceased Vishwasrao
and an agreement for sale came to be executed on 20th March 1975, in the
presence of two attesting witnesses. That, the possession of the deceased
Marutirao Jirge over the suit plot which was prior to the execution of the
agreement for sale dated 20th March, 1975 was confirmed under the said
agreement. That, there was no date fixed for execution of the Sale Deed.
It was pleaded that the deceased Marutirao and after his demise plaintiff
No.1 called upon Vishwasrao to execute the sale deed time and again. It
was pleaded that Vishwasrao assured to execute the sale deed after getting
the suit property converted into non agricultural land and getting the
layout of the suit plot approved from the competent authority and upon
rsk 25-SA-240-15-F12.doc
separate property card being prepared for the same. It was pleaded that in
the initial lay out 40 ft. wide colony road was shown over the suit plot
and as such the sale deed could not be executed. That, with the
permission of deceased Vishwasrao, the deceased Marutirao had
constructed a house on the suit plot which was demolished by the
Municipal Corporation on 5th December 1991 being without permission.
That, the deceased Marutirao had instituted special Civil Suit
No.31/1992 for injunction and compensation. The suit came to be
withdrawn on written assurance given by the Municipal Corporation that
no road will be constructed on the suit property and in the revised layout
the suit property will be shown as an independent plot. That, a compound
wall came to be constructed by the Plaintiffs on four sides of the suit
property with an iron gate which was kept locked. It was pleaded that at
the instance of the plaintiff, defendant No.1 submitted a proposal for
revised lay out for City Survey No.462/B which was sanctioned on 31 st
January 2003 and as per the revised lay out a plot came to be shown
instead of road and separate property card vide City Survey No.462/B
showing plot No.8 came to be prepared. It was pleaded that despite the
plaintiff offering the balance consideration of Rs.400/-to the defendant
calling upon them to execute sale deed of the suit plot, the defendants
avoided to perform their part of the contract. Hence notice dated 12 th
rsk 25-SA-240-15-F12.doc
April 2006 was sent to the defendant calling upon them to execute sale
deed which came to be denied by defendant No.1 As such Suit for specific
performance came to be filed.
4. The Suit proceeded ex parte as against defendant Nos. 2 and
3 and Defendant No.1 resisted the Suit by filing his written
statement. It was pleaded that there was no agreement for sale which was
executed. It was contended that the Suit was barred by limitation. It was
further contended that neither agreement for sale was executed nor the
possession was handed over to the plaintiffs. As per the defendant their
predecessors in title had got a layout sanctioned on 3 rd December 1974
and as per the said lay out between plot Nos.3 and 4 there was a 40 feet
road which could not have been sold.
5. It was contended that the predecessor of the plaintiffs was
Municipal Councillor and political leader and deceased Marutirao and
deceased Vishwasrao were acquainted with each other. It was contended
that deceased Vishwasrao during time of distress had taken certain
amount on loan and as and by way of security had affixed
signatures on certain documents which had been misused and a forged
and fabricated agreement has been prepared. It was contended that after
the revised lay out of 7th February 2003 the suit property has been
numbered as plot No.8 and the defendants have obtained construction
rsk 25-SA-240-15-F12.doc
permission from the Planning Authority and has started the work of
construction.
6. Defendant Nos.4 and 6 have contested the Suit by filing the
written statement contending that there was no agreement for sale
executed with the plaintiffs and the lay out was not sanctioned on the date
of the alleged agreement. It was pleaded that the property being shown as
road in the initial lay out could not be sold under the provisions of the
Maharashtra Municipal Corporation Act. It was contended that the plaint
is silent as to the date on which deceased Marutirao had called upon the
deceased Vishwasrao to execute the sale deed and as such the Suit was
barred by limitation.
7. The parties went to trial. The Trial Court framed and
answered the following issues as under :
Sr. ISSUES FINDINGS
No.
1. Whether the description of the suit Yes
property is mentioned in para 2 of
the plaint is correct ?
2. Whether the plaintiffs prove that, No.
late Vishwasrao Pandurang Mohite
(predecessor-in-title of the
defendants had executed an
agreement to sell the suit property in
favour of late Marutirao Kallappa
Jirage (predecessor-in-title of the
plaintiffs) on 20/3/1975 ?
rsk 25-SA-240-15-F12.doc
3. Whether the plaintiffs further prove No.
that their predecessor-n-title was in
possession of the suit property as a
consequence of part performance of
contract and after his death the
plaintiffs are in possession of the suit
property ?
4. Whether the plaintiff prove that, No.
they are always ready and willing to
perform their part of contract ?
5. Whether the suit is barred by law of Yes
limitation ?
6. Whether the defendant No.4 to 6 Yes
prove that, the alleged agreement to
sell is void ?
7. Is plaintiff entitled to the relief of No.
specific performance of contract or
in the alternative the refund of
earnest money ?
8. What order and decree ? As per final order.
8. After considering the oral and documentary evidence on
record the Trial Court dismissed the suit negating the issue as regard of
the execution of agreement for sale, possession of the predecessor in title
of the plaintiffs as well as issued regarding readiness and willingness on
the part of the plaintiff. The Trial Court also held that the suit is barred by
limitation.
9. As against this, the plaintiffs filed Regular Civil Appeal
No.75/2011. The Appellate Court framed the following points for
determination:
rsk 25-SA-240-15-F12.doc
Sr. POINTS FINDINGS
No.
1. Whether deceased Vishwasrao had In the affirmative.
agreed to sell the suit plot to
deceased Marutirao by executing
alleged agreement dated 20/3/1975 ?
2. Whether the alleged agreement In the negative.
dated 20/3/1975 was legally
enforceable ?
3. Is the suit within the statutory In the negative.
period of limitation ?
4. Whether the predecessor in title of In the negative.
the plaintiffs and the plaintiffs were
ready and willing to perform
his/their part of contract ?
5. Are the plaintiffs entitled to a decree In the negative.
for specific performance ?
6. What order ? Appeal is
dismissed.
10. The Appellate Court held that the execution of the
agreement for sale dated 20th March 1975 was proved. The Appellate
Court held that the said agreement was not legally enforceable, was not
within the period of limitation and that there was no readiness and
willingness on part of Plaintiffs to perform their part of the contract. As
regards the enforceability of the agreement, the first Appellate Court
noted the admission of PW-1 that the agreement in question was in
respect of DP road and that after the lay out was sanctioned the road on
the open plot was handed over to the Municipal Corporation. The
rsk 25-SA-240-15-F12.doc
Appellate Court also noted that PW-1 conceded that in the year 1975
deceased Vishwasrao had no right to sell the suit property which was a
road between plot Nos.3 and 4 of the sanctioned lay out. On the basis of
the admitted factual scenario, the Appellate Court held that there was no
plot in which Vishwasrao had saleable interest. The Appellate Court held
that the road not getting vested in the Municipal Corporation ipso facto
does not necessarily imply that it could be subject matter of transfer and
as such held that the agreement was not legally enforceable. As regards the
issue of limitation, the Appellate Court noted that there is evidence to
indicate that in the year 1976-1977 the plaintiff's predecessor in title
demanded performance of the agreement which was refused repeatedly
and that in the year 1987 master plan was revised and yet till the death of
deceased Vishwasrao no action was taken by the predecessor in title of the
plaintiffs. The Appellate Court noted that PW-1 in his cross examination
has conceded that in the year 1976-1977, the predecessor in title of the
defendants was called upon to execute sale deed, yet it was not executed
and that the demand was again repeated but in spite of repeated demands
sale deed was not executed by the predecessor in title of the defendants.
The Appellate Court in view of the admissions held that in absence of any
term in the agreement that the sanction of the revised lay out was a
condition precedent for the performance of the contract held that the
rsk 25-SA-240-15-F12.doc
Suit is barred by limitation as even after notice of refusal the suit was not
instituted within 3 years.
11. On the issue of readiness and willingness the Appellate Court
held that till the suit notice dated 12th April 2006 came to be issued there
was no written communication by the plaintiffs expressing their readiness
and willingness to perform their part on the contract or calling upon the
defendants to perform their part of contract. The Appellate Court
considered that it is brought out in the cross examination of PW-1 that
even after the road was deleted in the master plan, there was no
communication by the predecessor in title of the plaintiffs to the deceased
Vishwasrao calling upon him to execute sale deed. The Trial Court held
that the plaintiff has not succeeded in establishing readiness and
willingness in respect of an agreement which was executed prior to 30
years.
12. Heard Mr. G.S. Godbole, learned Senior Advocate
appearing for the appellant and Mr. Pralhad Paranjape for Respondent
No.1.
13. Mr. Godbole has taken this Court through the findings of the
Trial Court and the Appellate Court. He would submit that the
substantial questions of law which would arise is in respect of the
rsk 25-SA-240-15-F12.doc
enforceability of the agreement as the statutory provisions defining
private street and public street within the meaning of Section 2(50) and 2
(52) of the Maharashtra Municipal Corporation Act indicates that road
shown in private layout does not vest in the Municipal Corporation
without any declaration and/or acquisition as per the provisions of law.
He would submit that in the year 1974 the initial layout was prepared
and an area 2400 sq. feet was shown as a road with a dead end. He
submits that the agreement was executed on 20 th March 1975 and
consideration of Rs.4,400/- was paid. As regards the possession, he would
contend that possession was proved from the fact that a house was
constructed which came to be demolished by the Corporation as against
which Special Civil Suit No.131/1992 for injunction and damages was
filed against the Corporation in which according to him on 30 th August
2002 a compromise was entered into and a fresh layout came to be
sanctioned on 31st December 2003 resulting in road being shown as plot
No.8. He submits that in the year 2004, the plaintiffs building plans were
sanctioned and commencement certificate was obtained on 17 th March
2004. He submits that as sale deed was not executed, notice came to be
issued on 12th April 2006 and as the defendant failed to execute sale deed
the Suit was filed on 29th April 2006. He would further submit that as per
the provisions of Article 54 of the Limitation Act, the period of limitation
rsk 25-SA-240-15-F12.doc
would commence from the date of notice of refusal of performance as no
date was fixed for performance in the agreement. He submits that the
conduct on the plaintiff would show that he was ready and willing to
perform the agreement. Without prejudice to the earlier submissions, he
submits that in view of the provisions of Section 43 of the Transfer of
Property Act upon the interest being subsequently acquired by the
defendants the specific performance of the agreement for sale deserves to
be decreed. In support thereof he relies on Tanu Ram Bora vs. Pramod
Ch. Das (Dead) through legal Representatives and Ors.,(2019) 4 SCC
173-.
14. Considered the submissions and perused the record.
15. The Appellate Court has reversed the finding of the Trial
Court on the issue of execution of agreement for sale dated 20 th March,
1975 and as such the execution of agreement has been proved. The
Appellate Court has dismissed the Appeal holding that the agreement was
not legally enforceable, the suit was barred by limitation and the Plaintiffs
were not ready and willing to perform their part of the agreement. The
undisputed fact is that at the time of execution of the agreement for sale
dated 20th March 1975, in the sanctioned layout the suit plot was shown
as road. Without the layout being revised, irrespective of whether the road
was private road or public street and irrespective of whether the road vests
rsk 25-SA-240-15-F12.doc
in the municipal corporation, the plot shown as road could not have been
the subject matter of transfer. The agreement for sale does not make the
sale contingent upon the revised layout being sanctioned revising the suit
property from road to an independent plot. The Appellate Court was
therefore right in holding that the agreement for sale was not enforceable
as the same was in respect of road. As regards the issue of limitation,
Article 54 of the Limitation Act prescribes a limitation of 3 years for
specific performance of contract which commences from the date fixed for
performance and if no such date is fixed when the plaintiff has notice of
refusal of performance. Admittedly in the instant case, no date is fixed for
performance and the limitation would commence from the date when the
Plaintiffs had notice of refusal of performance. The agreement for sale was
executed on 20th March, 1975, the revised layout was sanctioned in
December, 2003 and the notice seeking specific performance was issued
on 12th April, 2006 to which the Defendant No 1 responded by reply
dated 20th April, 2006 denying the execution of the agreement for sale
dated 20th March, 1975. In the plaint, the cause of action is pleaded to
have arisen when the reply dated 20th April, 2006 was sent by the
Defendant No 1 denying the execution of the Agreement for Sale.
16. Admittedly from the year 1975 till the year 2006 there is no
written notice sent by the Plaintiffs or their pre-decessor in title calling
rsk 25-SA-240-15-F12.doc
upon the Defendants or their pre-decessor in title to perform their part of
the contract and execute the sale deed. Mr. Godoble, learned Senior
Advocate would contend that the limitation would commence from the
date of reply of the Defendant No 1 i.e from 20 th April, 2006 as that was
the time when there was refusal of performance. In this context, the Trial
Court as well as the Appellate Court has considered the vital admissions
given by PW-1 in his cross examination that the agreement for sale was in
respect of DP road and that the deceased Marutirao had made an inquiry
that the said DP road belong to the municipal corporation. PW-1 has
further admitted that demand was made for execution of the sale deed as
per agreement for sale in the year 1976-1977 and as per demand the sale
deed was not executed. He has further admitted that repeated demands
were made for execution of the sale deed from time to time and despite
repeated demands sale deed was not executed. Based on the admissions of
PW-1, the Appellate Court has held that it is not the case of
postponement of the execution of sale deed in view of the pending of
revised layout but refusal of performance as there is no term in the
agreement for sale as regards the revised layout.
17. It is well settled that under Section 100 of CPC, this Court
can interfere with finding of fact where there is perversity in appreciating
the evidence on record. In the present case, the Trial Court as well as the
rsk 25-SA-240-15-F12.doc
Appellate Court has rightly appreciated the evidence of PW-1 that there
was refusal to perform the agreement when in the year 1976-1977 and
thereafter repeated demands for execution of the sale deed was not
complied with. It is also not disputed that structure was constructed by
the deceased Marutirao on the said plot despite the same being shown as
road and as such the contention that performance was deferred to the
sanctioning of the revised layout cannot be countenanced. The Appellate
Court has rightly held that if the sale deed was to be executed after the
revised layout was sanctioned, there was no question of demand of
performance. The admission of PW-1 is clear and explicit that in spite of
repeated demands the sale deed was not executed. Once there is an
admission on record that there was demand for execution of the sale deed
which demand was not complied with by the defendant the same would
constitute refusal of performance of the agreement and as such the period
of limitation would commence from that date. The despatch of legal
notice in the year 2006 will not enure to the benefit of the plaintiffs in
view of the admissions of PW-1 as the plaintiffs had notice of refusal in
the year 1976-1977 itself. The suit not being instituted within a period of
3 years was clearly barred by limitation. The Appellate Court and the
Trial Court on the basis of evidence which has come on record had rightly
dismissed the Suit. The decision in case of Tanu Ram Bora vs. Pramod
rsk 25-SA-240-15-F12.doc
Ch. Das (Dead) through legal Representatives and Ors (supra) was
pressed into service as regards the alternative submission on Section 43 of
Transfer of Property Act. In view of the discussion above, the question of
applicability of Section 43 of Transfer of Property Act does not arise for
consideration.
18. Having regard to the discussion above, no substantial
question of law arises in the present case. Appeal stands dismissed. In
view of dismissal of the Appeal, Civil Application does not survive and
stands disposed of.
(SHARMILA U. DESHMUKH, J. )
