Bombay High Court

Abdul Akash Jamal Abdul Jamil And Other vs Gowardhandas S/O Kashiram Rathi And ... on 17 October, 2024

Author: M. W. Chandwani

Bench: M. W. Chandwani

2024:BHC-NAG:12229


                                                                                                                               J AO-22-2024.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.
                          APPEAL AGAINST ORDER NO.22 OF 2024
              APPELLANTS                                 : 1          Abdul Akash Jamal Abdul Jamil,
              (Ori. Defendants)                                       Aged about : 35 Years, Occu: Business,
              (On R.A.)
                                                                      R/o. Saudagarpura, Amravati, Tq. &
                                                                      Dist. Amravati.
                                                             2        Rajendra S/o. Janrao Adhau,
                                                                      Aged about 60 Years, Occu. Business,
                                                                      R/o. Chandur Bazar, Tq. Chandur
                                                                      Bazar, Dist. Amravati.
                                                                      ..VERSUS..
              RESPONDENTS                                : 1          Gowardhandas S/o. Kashiram Rathi,
              (Ori. Plaintiffs)
              (On R.A.)
                                                                      Age : 76 Years, Occu.: Agriculturist,
                                                             2        Smt. Sheetal W/o. Gowardhandas
                                                                      Rathi,
                                                                      Age: 69 Years, Occu.: Agriculturist,
                                                             3        Ashish Kumar S/o. Gowardhandas
                                                                      Rathi,
                                                                      Age: 48 Years, Occu.: Agriculturist,
                                                             4        Smt. Rachna W/o. Ashishkumar Rathi,
                                                                      Age : 46 Years, Occu.: Agriculturist,
                                                                      All Respondent Nos.1 to 4 are resident
                                                                      of Krishna Villa Infront of Government
                                                                      I.T.I. College behind Kalim Petrol
                                                                      Pump, camp, Amravati, Dist. Amravati.
               ------------------------------------------------------------------------------------------------------------------------------------
                      Mr H. Biherani, Advocate for Appellants.
                      Mr P. R. Agrawal, Advocate for Respondent Nos.1 to 4.
               ------------------------------------------------------------------------------------------------------------




                    TAMBE
                                                      J AO-22-2024.odt
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 CORAM : M. W. CHANDWANI, J.
 DATED      : 17th OCTOBER, 2024.

ORAL JUDGMENT

1. Correctness of the order dated 28.08.2024 passed by

the Joint Civil Judge Senior Division, Achalpur, thereby

allowing the application of the respondents - original plaintiffs

restraining the appellants - original defendants from

obstructing the possession of the plaintiffs over the suit

property and from entering into the suit property till the

decision of the suit.

2. The genesis of the dispute lies in agreement to sell

dated 26.04.2023, whereby, the respondents - the owners of

the suit property agreed to sell the suit property to the

appellants on the terms and conditions mentioned in the said

agreement. Since a dispute arose between the parties about

non-payment of part consideration in time as agreed in the

agreement to sell, it is necessary to mention here the terms of

payment of consideration mentioned in the agreement to sell, TAMBE J AO-22-2024.odt

which are as under :

"i) The total sale consideration of the suit property is fixed as Rs.3,89,25,600/-.

ii) At the time of execution of the said agreement, amount of Rs.90,00,000/- to be paid to plaintiffs and they received the same by way of cheques and cash.

iii) Installment of Rs.90,00,000/- shall be paid on 15/07/2023.

iv) By paying the remaining sale consideration, sale-

deed of the suit property shall be executed till 15/12/2023.

v) The major terms of the said agreement are to pay the installment of Rs.90,00,000/- on 15/07/2023 and if the amount of installment is not paid on the above date and also the sale deed was not executed on the fixed date i.e. 15/12/2023, then agreement to sell shall comes to an end. Further, the amount paid at the time of execution of the said agreement, forfeited and agreement stood canceled.

vi) Plaintiffs will permit/permission to fix board, demarcation, earth work, road and drainage development work and the possession of the suit property shall be delivered on execution of the sale deed of the suit property."

TAMBE J AO-22-2024.odt

3. The grievance of the respondents/sellers was that, the

appellants failed to pay the second installment of Rs.90 lakhs to

them till date, which they ought to have paid to the

respondents by 15.07.2023. The respondents met the

appellants on 14.09.2023 regarding payment of the second

installment. However, the appellants instead of paying the

second installment, gave threats to the respondents of creating

third party interest in the suit property. Thereafter, on

20.09.2023, the respondents issued a legal notice to the

appellants to pay the second installment as agreed in the

agreement within seven days from the date of receipt of notice.

The appellants failed to make the payment, even they did not

respond to the notice. A second notice was issued on

05.10.2023 informing them that they had defaulted on the

second installment as per the agreement, therefore, the

agreement to sell was cancelled. The notice was replied to by

the appellants stating that the respondents orally agreed to

extend the period of second installment of Rs.90 lakhs as

TAMBE J AO-22-2024.odt

agreed in the agreement to sell by six months.

4. The respondents/sellers filed suit before the Court of

the Civil Judge Senior Division, Achalpur seeking a declaration

and injunction. The respondents also filed an application for

temporary injunction to restrain the appellants from

obstructing their peaceful possession over the suit property and

from entering the property. The Trial Court allowed the

application in favour of the respondents. Feeling aggrieved with

the said impugned order, the present appeal came to be filed.

5. The main contention raised by the appellants in this

appeal is that the respondents have handed over the possession

of the suit property to the appellants under execution of the

agreement to sell. Some construction work and other

development works such as installation of drainage systems

have been undertaken by the appellants. The Trial Court

erroneously recorded the findings in its order that the

appellants are in unauthorized possession and restrained the

TAMBE J AO-22-2024.odt

appellants from obstructing the respondents' possession of the

suit property and from entering the suit property. Therefore,

the impugned order is required to be set aside.

6. Heard the learned counsels appearing for the

respective parties. Having gone through the impugned order,

the pleadings of the parties as well as the agreement to sell in

question, it transpires that the respondents agreed to sell the

suit property to the appellants for consideration the amount of

Rs.3,89,25,600/- and the amount of Rs.90 lakhs was paid to

the respondents at the time of execution of the agreement to

sell. This agreement clearly stipulates that the second

installment of Rs.90 lakhs shall be paid by 15.07.2023 and

remaining balance consideration shall be paid at the time of

execution of the sale-deed.

7. The defence set up by the appellants is that after the

written agreement to sell, there was an oral agreement between

them that the second installment shall be paid six months after

TAMBE J AO-22-2024.odt

the originally agreed date, which is disputed by the respondents

and consequently, the agreement to sell came to be cancelled by

the respondents by issuing notice dated 28.09.2023. This

disputed aspect is to be determined during the trial. For the

purpose of deciding the present appeal, particularly, the point

of possession is very relevant.

8. This takes me to para 16 of the impugned order,

where the Trial Court has mentioned admitted facts. Perusal of

this para goes to show that the Trial Court has recorded that the

possession of the suit property was handed over to the

appellants to carry out the development work and for the

purpose of level conversion. The attention of this Court is also

drawn to para 27 of the impugned order, wherein, it is observed

that the appellants' possession over the suit property appears to

be illegal, particularly after the respondents issued notices

regarding cancellation of agreement to sell. The Trial Court

further observed that such possession over unauthorized

construction cannot be protected under the law.

TAMBE J AO-22-2024.odt

9. Taking help of these findings of the Trial Court, the

learned counsel for the appellants vehemently submitted that

this demonstrates that the appellants are in possession of the

suit property but the Trial Court, in spite of its own finding

went on to pass the order restraining the appellants from

obstructing the possession of the suit property and entering

into the suit property. Therefore, the impugned order needs to

be set aside.

10. Conversely, Mr Agrawal, learned counsel appearing

on behalf of the respondents vehemently submits that the

appellants have shown the impugned order in a selective and

piecemeal manner. According to him, if the entire impugned

order is read, it will reveal the fact that the Trial Court is of the

opinion that possession over the suit property was never

handed over to the appellants. The terms and conditions of the

agreement were also read by the learned counsel for the

respondents.

TAMBE J AO-22-2024.odt

11. Perusal of the agreement, particularly on the point of

possession reveals that the possession over the suit property was

to be handed over at the time of the sale-deed. However, the

respondents permitted the appellants to carry out development

work which included demarcating plots, conducting earthwork

and constructing drainage, apart from giving permission to fix a

board. This has been referred in later part of the impugned

order by the First Appellate Court.

12. In wake of the clear terms and conditions in the

agreement to sell indicating that the possession of the suit

property will be handed over at the time of sale-deed, giving

permission to demarcate the plots, to do earthwork and

drainage work and to fix the board cannot be said to be the act

of handing over the possession. By giving this permission, the

respondents never intended to hand over the possession of the

suit property. This aspect has also been very well dealt with by

the Trial Court in its impugned order. However, it appears that

the Trial Court got carried away by the conditions/terms

TAMBE J AO-22-2024.odt

granted by the respondents to the appellants and erred in

holding that it amounts to licensing of the alleged suit property

and consequently, the Court erroneously held that the

appellants are in possession of the suit property. Considering

the agreement to sell and the conduct of the parties post

agreement, prima facie it appears that the possession was never

handed over to the appellants, as argued by the learned counsel

for the appellants.

13. A reference can be made to the decision of the

Hon'ble Supreme Court in the case of Seshasayee Steels P. Ltd.

Vs Assistant Commissioner of Income Tax, 2020 (14) SCC

774, wherein the Hon'ble Supreme Court in paras 13 and 14

has held as under :

"17. Clause 16 is crucial, and the expression used in Clause 16 is that the party of the first part hereby gives 'permission' to the party of the second part to start construction on the land. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be 'possession' within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and

TAMBE J AO-22-2024.odt

not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone."

14. The argument of the learned counsel for the

appellants that the ratio will not applicable, is required to be

discarded for the reason that though in the case mentioned

above is related to the case of the assessee for the purpose of

income tax, the Supreme Court has gone into the terms of the

conditions as well as decided the nature of possession vis-a-vis

Section 53 of the T.P. Act.

15. Thus, there is material available on record to prima

facie suggest that the respondents are in possession of the suit

property. Therefore, except the finding of the Trial Court that

the appellants were in unauthorized possession of the suit

property, no other finding requires any interference.