Bombay High Court
Bhavadu Lotan Pawar (Deceased Through ... vs Ganpat Pundu Khaire (Deceased Through ... on 5 March, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:11906
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.763 OF 2015
WITH
CIVIL APPLICATION NO.1640 OF 2015
Bhavadu Lotan Pawar
(Deceased through Legal Heirs) ...Appellant/Applicant
Versus
Ganpat Pundu Khaire (Decd. Thr.
Legal Heirs) ...Respondents
Mr. Pradeep J. Thorat i/b Mr. Tushar N. Sonawane for the
Appellant.
Mr. Rohan Mirpury a/w. Mr. Harshvardhan Borse, Mr. Yashwant
Dhanegave i/b Mr. G. Mogre for the Respondents.
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 5th MARCH, 2024
P. C. :
1. Being dissatisfied by the judgment dated 4 th April 2015
passed by the Appellate Court in Regular Civil Appeal No.263/2009
dismissing the appeal confirming the judgment and decree passed by the
Trial Court in Regular Civil Suit No.32/2003 on 7 th November 2009,
the original plaintiff is before this Court.
2. Regular Civil Suit No.32/2003 was filed by the plaintiff
seeking specific performance of agreement of sale dated 26 th March 1972
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executed in favour of the plaintiff by the Defendant. It was pleaded that
possession of the suit property was handed over to the plaintiff. The
consideration amount was fixed at Rs.6,500/- out of which a sum of
Rs.5,500/- was paid and the balance Rs.1,000/- remained to be paid. It
was contended by the plaintiff that he is always ready and willing to
perform his part of the contract. It was further pleaded that since 1973
the suit property was in the possession of the plaintiff. It was pleaded that
in the interregnum there were revenue proceedings which were initiated
as no permission was sought from the Collector for the sale transaction
and in the year 1982 it was held that the transaction could be regularized.
It was contended that in and around 2001 the defendant obstructed the
possession of the plaintiff and on 27 th January 2003 the plaintiff issued a
notice to the defendant calling upon the defendant to execute the
agreement of sale to which there was no response by the defendant. It was
contended that as per the agreement for sale the obligation was upon the
defendant to obtain the permission and that in spite of repeated demands
the defendant did not obtain the permission and as such agreement of sale
could not be executed.
3. The suit came to be resisted by the defendant. It was
contended that the suit property was Inam Land of Class 6B which was re-
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granted to the defendant by mutation entry No.123. It was contended
that under Section 59 of the Maharashtra Land Revenue Code on 2 nd
December 1977 the possession of the suit property was taken from the
plaintiff and given to the defendant and as such he is in possession of the
property.
4. The defendant filed counter claim seeking an order of
injunction restraining the plaintiff from obstructing the possession of the
defendant over the suit property and in the alternative if the possession
is held to be with the plaintiff for relief of recovery of possession. The
Trial Court by the judgment dated 7th November 2009 dismissed the suit
as well as the counter claim. The Trial Court accepted the execution of the
agreement of sale however negated the issue as regards the readiness and
willingness as also the issue of limitation. The Issue as regards the
possession of the defendant as well as the obstruction at the hands of the
plaintiff came to be negated.
5. As against the dismissal by the Trial Court, Civil Appeal
No.263/2009 was filed by the plaintiff. There was no cross appeal/cross
objections filed by the defendant. The Appellate Court framed the
following points for determination:
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Sr. No. POINTS FINDINGS
1. Whether the defendant has executed
agreement to sale in favour of plaintiff
on 26/3/1972 and defendant had
received Rs.5,500/- towards ...Yes
consideration amount out of total
Rs.6,500/- ?
2. Whether suit is bad for non joinder of ...No
necessary parties ?
3. Whether the suit is within limitation ? ...No
4. Whether plaintiff proves that he was ...No
ready and willing to perform his part
of contract and entitled for specific
performance ?
5. Whether plaintiff proves that his ...No
peaceful possession was obstructed by
the defendant and therefore he is
entitled for relief of perpetual
injunction ?
6. Whether the judgment and decree ...No
passed by the learned trial Court calls
for any interference ?
7. What order ? ...As per final order
6. The Appellate Court held that the Suit was barred by
limitation and that the plaintiff was not ready and willing to perform his
part of the contract and thus was not entitled for specific relief.
7. Heard Mr. Pradeep J. Thorat for the appellant and Mr.
Rohan Mirpury for the respondents.
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8. Mr. Thorat, learned counsel for the appellant would submit
that the suit was filed after the notice of refusal of performance by the
defendant which was in the year 2003. According to him as there was no
date fixed for the performance of contract and upon the notice of refusal
of performance by the defendant the suit came to be filed. He submits
that the Trial Court has held that the notice is produced on record and
was not proved and the Appellate Court has held that neither notice was
produced not it was proved. Pointing out to the pleadings in the written
statement, he would submit that there is no denial as far as receipt of
notice is concerned and as such the notice dated 27th January 2003 was
proved. He submits that the plaintiff was ready and willing to perform his
part of the contract the obligation was upon the defendant to obtain
necessary permission from the Collector. He submits that as the plaintiff
was in possession of the property since 1972 there was no occasion for the
plaintiff to seek specific performance of the contract in the absence of the
permission being obtained by the defendant. He submits that the
Appellate Court had erred in coming to a finding as regards the payment
for the regularization of the transaction which obligation was not upon
the plaintiff as per the terms of the contract. He would further submit that
there were three witnesses who were examined by the plaintiff and the
issuance of notice dated 27th January 2003 was proved. He submits that
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despite cross examination there was no suggestion given as regard non
receipt of the notice. He further submits that there was no cross appeal
filed by the defendant challenging the dismissal of the counter claim and
before the Trial Court the plaintiff was held to be in possession. Pointing
out to the findings of the Appellate Court he would submit that the
Appellate Court has observed that the plaintiff is not in possession of the
plaintiff property and no such point for determination of the plaintiff's
possession was framed. He submits that substantial question of law
which arises is the conclusion on the issue of limitation as well as the
findings of readiness and willingness which suffers from perversity.
9. Per contra, Mr. Mirpury learned counsel for the respondent
would point out that the plaintiff had filed his affidavit of evidence,
however he remained absent for the cross examination and thereafter his
Power of Attorney entered into the witness box and has deposed about
the transaction. He submits that as no evidence was led by the plaintiff
the notice of 27th January 2003 was not proved. He would further submit
that for a period from 1983-2003 there was no action on the part of the
plaintiff and no notice was even issued to the defendant calling upon him
to obtain the permission and complete the obligation to execute
agreement of sale . He submits that in view thereof Courts have rightly
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answered the issue of readiness and willingness against the plaintiff.
10. Considered the submissions and perused the record.
11. The issue as regards limitation as well as readiness and
willingness has been answered against the plaintiff. The cause of action
according to the plaint arose upon the non response to the notice dated
27th January 2003 issued by the plaintiff seeking execution of the
agreement of sale. As per Article 54 of the Limitation Act the period of
limitation commences if date is fixed for performance from that date and
in event no date is fixed from the date when the plaintiff has notice of
refusal of performance. In the present case, admittedly no date has been
fixed for performance and as such limitation would commence from the
date when the plaintiff has noticed refusal of performance and said notice
of refusal has to be established by placing necessary material on record
and by leading evidence. In the present case, the plaintiff after filing his
affidavit of evidence has not stepped into the witness box and thereafter
evidence has been led by the power of attorney holder. It is well settled
that the power of attorney cannot depose in respect of the facts which are
personal to the knowledge of the principal and can depose only in respect
of the facts about which he has personal knowledge or which have been
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performed by him as the constituted attorney. In the present case notice
of 27th January 2003 was issued by the plaintiff and not by the power of
attorney holder. As the plaintiff choose not to make himself available for
cross examination, his evidence was discarded. Even if notice has been
produced the same was not admitted in evidence and as such the Trial
Court as well as the Appellate Court has rightly held that notice has not
been proved. From the judgment of the Trial Court and the Appellate
Court it does not appear that any arguments were advanced as regards
admissibility of the notice and rightly so as plaintiff had not made himself
available for cross examination and therefore his evidence could not have
been considered. That being so, the suit was rightly held to be barred by
limitation in absence of any material produced on record to show the date
of notice of refusal of performance when the agreement of sale has been
executed in the year 1972.
12. Now coming to the issue of readiness and willingness, the
agreement for sale was executed in the year 1972 and the plaintiff was put
in possession of the property in the year 1983. Thereafter there was
certain revenue proceedings as regards the possession of the defendant
and it appears that the transaction was permitted to be regularized. From
the year 1983 till the filing of the Suit in the year 2003 there are
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absolutely no steps taken by the plaintiff to get the agreement of sale
executed. For the purpose of seeking specific performance the continuous
readiness and willingness has to be demonstrated. In the present case from
the year 1983 till the year 2003 not even a notice was issued to the
defendant calling upon him to obtain permission from the Collector and
to execute the agreement of sale. By reason of complete silence from the
period 1983 till 2003, it cannot be said that there was continuous
readiness and willingness on the part of the plaintiff. It is settled that the
readiness and willingness has to be inferred from material produced on
record to demonstrate that the plaintiff stands by the contract and for the
said purpose all attendant factors are to be taken into consideration. The
transaction was regularized in the year 1983 and although the obligation
was upon the defendant to obtain the permission, there is not even a
single communication addressed by the plaintiff to the defendant
indicating his willingness to complete the transaction and offer to pay
balance money or calling upon him to obtain the permission and comply
with his obligation. As such, the Trial Court and the Appellate Court has
rightly answered the issue of readiness and willingness as against the
plaintiff.
13. The Trial Court has dismissed the counter claim of the
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defendant and had held that plaintiff was in possession of the suit
property. There was no cross appeal which was filed by the defendant as
against dismissal of the counter claim in spite thereof the Appellate Court
while answering the issue as regards obstruction by the defendant over
the plaintiffs possession has observed that merely on the basis of the
name of the plaintiff being mutated in the 7/12 extract, he cannot be
presumed to be in possession of the suit property. The said observations is
clearly unsustainable and observation to that extent is set aside.
14. Having regards to the discussion above on the basis of the
evidence which has come on record the Trial Court and the Appellate
Court have rightly appreciated the evidence. As such no substantial
question of law arises.
15. Second Appeal stands dismissed. Civil Application does not
survive and is accordingly disposed of.
(SHARMILA U. DESHMUKH, J. )
