Bombay High Court
Mohamad Yakub Gafurso Momin vs Shri.Babasaheb Mohamad Bagwan on 31 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:5633
rsk 33-SA-685-17-F52.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.685 OF 2017
WITH
SECOND APPEAL NO.252 OF 2017
(NOT ON BOARD. TAKEN ON BOARD)
Mohamad Yakub Gafurso Momin ...Appellant
V/s.
Babasaheb Mohamad Bagwan ...Respondent
Mr. Javeed Hussein a/w. Mr. Mubashir Hussein, Munibah Iram i/b Hussein
& Company for the Appellant.
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 31st JANUARY, 2024.
P. C.:-
1. Being dissatisfied by the common judgment dated 7 July 2016
passed by the appellate Court in Regular Civil Appeal No.228/2002 and
Regular Civil Appeal No 229 of 2002 confirming the common judgment of
the Trial Court dated 22nd April, 2002 dismissing Special Civil Suit No 618
of 1995 and Regular Civil Suit NO 1480 of 2000, the original plaintiffs are
before this Court. As common issues were involved, with consent of learned
counsel for Appellants both the Appeals were taken up for hearing and
disposed of by this common order.
rsk 33-SA-685-17-F52.doc
2. Both the suits were instituted by the Plaintiffs seeking specific
performance of the agreements for sale. The case of the plaintiffs was that
the Defendant is the owner of property bearing CTS No 725/1 ad-
measuring 774 square feet situated within the limits of Kolhapur Municipal
Corporation. The defendant agreed to sell a portion of 480 sq. ft. of the
house property bearing CTS No.725/1 for which an earnest amount of
Rs.20,000/- was paid and an agreement for sale in presence of attesting
witnesses Sikandar Sayyad and Dr. Dastgir Momin was executed. As per the
plaintiff the Sale Deed was to be executed within one month by evicting the
tenant viz., Abdul Raheman Shaikh residing in the suit premises and by
satisfying the loan of the Ravi Co-operative Bank to the tune of Rs.20,000/-
3. On the same date i.e. on 25 September 1992 defendant agreed
to sell remaining portion of 294 sq. ft. of the said house property to the
plaintiff for a consideration of Rs.87,000/- for which earnest amount of
Rs.5000/- was paid and a separate agreement of sale in the presence of
attesting witnesses Sikandar Sayyad and Aurangjeb Mehtar was executed.
The attesting witness Sikandar Sayyad was the tenant in one room and as
per the Agreement of Sale defendant had to evict him and repay the loan of
Rs.20,000/- to Ravi Co-operative Ban and to execute the Sale Deed within
rsk 33-SA-685-17-F52.doc
one year. It was pleaded that as the defendant failed to comply with the his
obligations under the two Agreements for Sale and no Sale deed was
executed notice dated 24th September 1993 was issued to the defendant
demanding performance, which came to be refused.
4. Defendant resisted the suit by filing written statement denying
the execution of the Agreements for Sale. According to the defendant, the
transaction between the parties was loan transactions and signatures were
obtained by the plaintiff on certain blank papers and subsequently the
plaintiff has fabricated the signed papers and stamp papers and prepared
agreements for sale with the help of attesting witnesses, who are his close
relatives. It was further pleaded that the suit property was given by the father
of the defendant to his wife as meher, which fact the plaintiff was fully
aware as he resided just in front of the property.
5. Parties went to trial. The Trial Court after considering the
evidence which has come on record came to the conclusion that there is no
genuine agreement for sale executed between the parties and that the
transaction was money transaction. The Trial Court further held that the
stamp papers and other papers signed by the defendant for security came to
rsk 33-SA-685-17-F52.doc
be misused by the plaintiff. As such the Trial Court held that the plaintiff is
not entitled to specific performance. The Trial Court further held that as the
transaction of agreement of Sale as well as the execution of the agreements is
not proved by the plaintiff therefore the payment of earnest amount of
Rs.20,000/- and Rs.5000/-could not arise and as such even the alternative
relief of refund of earnest money was rejected by the Trial Court. As against
the Judgment of the Trial Court original plaintiff filed Regular Civil Appeal
No.228/2002 and Regular Civil Appeal No 229/2002 which came to be
rejected by the Appellate Court.
6. Heard Mr. Javeed Hussein learned counsel for the Appellant.
7. Mr. Hussein, learned counsel appearing for the appellant
submits that the Trial Court as well as the Appellate Court has failed to
apply the relevant provisions of the Specific Relief Act, which if applied
would decree the Suit in his favour. He submits that the discretion which
was required to be exercised under Section 20 of the Specific Relief Act was
not exercised and as such substantial question of law which has arisen in the
present case is the perversity in the findings of the Trial Court and the
Appellate Court. He submits that the Agreements for Sale executed
rsk 33-SA-685-17-F52.doc
between the parties shows purchase consideration as far as first property is
concerned as Rs.1,28,000/- and as far as the second property is concerned
Rs.87,000/- He submits that if the transaction was a loan transaction there
was no necessity for mentioning the purchase consideration in the
document. He submits that even if it is held that the transactions in question
were not sale transactions the alternative relief of refund of earnest money
ought to have been granted.
8. Considered the submissions and perused the record.
9. The Trial Court has considered the two Agreements for Sale of
which the specific performance was sought. The Trial Court noted that
both these agreements of sale have been partly scribed on 25 th September
1992 and has been completed on 2nd October 1992 through a different
person. Noticing that in respect of the same property, there are two
agreements of sale which were partly executed on 25th September 1992 and
completed on 2nd October 1992, the Trial Court held that the sale does not
appear to be a genuine sale transaction. The Trial Court also noticed that
first 4 pages of both the agreements are in the handwriting of one person
and remaining pages are in the handwriting of different persons. Nothing
rsk 33-SA-685-17-F52.doc
has been demonstrated before the Trial Court or Appellate Court to justify
as to why two different agreements were executed in respect of different
portions of the same property and why these agreements were not executed
at one and the same time and were partly scribed on 25 th September 1992
and completed on 2nd October 1992. The Trial Court also noticed that
there are no signatures of the defendant on the stamp papers and his
signatures are at the end of the plain papers where recitals of agreement had
been completed. The factum of the attesting witnesses being close relatives
of the Plaintiff was not disputed before the Trial Court. Considering the
above facts which indicat4es that both the agreements were in different
handwriting, being executed on different dates and the signature of the
defendant appearing at the end of the plain paper where recitals of the
agreement has been completed, the Trial Court refused to exercise discretion
in favour of the plaintiff. The Appellate Court accepted the findings of the
Trial Court and dismissed the appeals.
10. The Trial Court has held that the agreements for sale cannot be
said to be a genuine sale transaction, which finding has been upheld by the
Appellate Court. The Courts have held that the entire claim of the Plaintiff
in both the suits appears to be based on false and fabricated documents.
rsk 33-SA-685-17-F52.doc
Learned Counsel for the Appellant has failed to demonstrate any perversity
in the findings. Once it has been held that the agreements for sale were not
sale transactions, there was no question of granting specific performance of
such agreements or even grant of alternative relief of refund of earnest
money. There are concurrent findings based on documentary evidence
which does not suffer from any perversity. The submissions of learned
counsel for the applicant would require this Court to re-appreciate the
evidence which has come on record which is impermissible under Section
100 of CPC.
11. Having regard to the discussion above, no substantial question
of law arises. Appeals stand dismissed.
(SHARMILA U. DESHMUKH, J.)
