Bombay High Court
Devidas Haribhau Jogdand. vs Vithal Yamaji Kolape And Others. on 6 August, 2025
2025:BHC-AUG:21007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 380 OF 1994 WITH
CIVIL APPLICATION NO. 4794 OF 1994
Devidas Haribhau Jogdand
(died) through LR's
... APPELLANT
(Orig. Defendant)
1-A) Parvatibai w/o Devidasrao Jogdand
Age : 80 years, Occu - Nil,
R/o Taluka - District Beed
1-B) Malanbai w/o Devidasrao Jogdand
Age : 75 years, Occu - Nil,
R/o Beed
(Deleted as per court order dated 26/08/2022)
1-C) Pandit s/o Devidasrao Jogdand
Age : 60 years, Occu - Pensioner
R/o Beed, Taluka - District Beed
(Died) through LR's
1-C-i) Shantabai w/o Panditrao Jogdand,
Age : 69 years, Occu - Household,
R/o. M.S.E.B. Colony, Shahu Nagar,
Beed, Tq. & District Beed
1-C-ii) Mahes s/o Panditrao Jogdand,
Age : 38 years, Occu - Service,
R/o. M.S.E.B. Colony, Shahu Nagar,
Beed, Tq. & District Beed
1-D) Balkrishna s/o Devidasrao Jogdand
Age : 45 years, Occu - Government Service,
R/o. Ahmednagar, Tq. & Dist. Ahmednagar,
1-E) Ambad s/o Devidasrao Jogdand
R/o Beed, Tq. & Dist. Beed
VERSUS
1. Vithal s/o Yamaji Kolpe,
Age : 50 years, Occu.: Agriculture,
sa380.1994.odt 1
R/o. Belgaon, R/o Limbaganesh, Tq. Beed
2. Nana s/o Yemaji Kolpe
(Died) through LR's
2(1) Sou. Godabai Tukaram Ingole
Age : 30 Yrs., Occu.: Household,
r/o Somnath Wadi,
Tq. & Dist. Beed.
3. Deorao s/o Yemaji Kolpe
(Died) through LR's
3A) Murlidhar Deorao Kolpe
Age : 64 Yrs., Occu.: Agri.
3B) Jalindar Deorao Kolpe
Age : 60 Yrs., Occu.: Agri.
3C) Mudhukar Deorao Kolpe
Age : 50 Yrs., Occu.: Agri.
3D) Anusaya Sahebrao Ingole
Age : 67 Yrs., Occu.: Household
3E) Nilawati Popat Jadhav
Age : 48 Yrs., Occu.: Household
All r/o Somnath Wadi, Tq. & Dist. Beed
4. Dnyanoba s/o Arjuna Madve,
Age : 30 Yrs., Occu. Agriculture,
r/o as above
5. Jeevan s/o Ambu Savant,
Age : 26 Yrs., Occu. Agriculture,
r/o as above
6. Shankar s/o Raghu Jadhav,
Age : 53 Yrs., Occu. Agriculture,
r/o as above
7. Sonaji Keru Jadhav
(Died) Through LR's
7A) Subhash Sonaji Jadhav
Age : 38 Yrs., Occu. Agri.
7B) Popat Sonaji Jadhav
Age : 30 Yrs., Occu. Agri.
sa380.1994.odt 2
7C) Shrimant Sonaji Jadhav
Age : 25 Yrs., Occu. Agri.
7D) Sunita Yogiraj Bhoite,
Age : 35 Yrs., Occu. Household
All r/o Somnath Wadi, Tq. & Dist. Beed.
8. Yedba s/o Ganpati Kolpe,
(died) through LR's
8a. Dnyanoba s/o Yedba Kolpe
Age : 34 Years, Occu. Agriculture,
r/o Belgaon, u/v Limbaganesh, Tq. Beed.
8b. Prabhu s/o Yedba Kolpe
Age : 45 Years, Occu. As above.
8c. Sahadeo s/o Yedba Kolpe,
Age : 32 Years, Occu. As above.
8d. Babu s/o Yedba Kolpe
Age : 25 Years, Occu. As above.
8e. Suman w/o Bajirao Khillare,
Age : 46 Years, Occu. Household,
r/o Pokhari, u/v Limbaganesh, Tq. Beed.
8f. Antikabai w/o Mahadeorao Mulik
Age : 39 Years, Occu. Household,
r/o Belgaon, u/v Limbaganesh, Tq. Beed.
8g. Vaijyanta w/o Ankush Wayambhat,
Age : 26 Years, Occu. Household,
r/o Limbaganesh
8h. Kantkabai w/o Dattu Jare
Age : 36 Years, Occu. Agriculture,
r/o Limbaganesh
9. Keshav s/o Laxman Kolpe,
Age : 43 Years, Occu. Agriculture,
r/o Belgaon, u/v Limbaganesh, Tq. Beed.
10. Shripati Keru Shelke
sa380.1994.odt 3
(died) Through LR's
10A) Gorakh Shripati Shelke
Age : 45 Yrs., Occ. Agri.
10B) Sharad Shripati Shelke
Age : 40 Yrs., Occ. Agri.
10C) Kalyan Shripati Shelke
Age : 38 Yrs., Occ. Agri.
10D) Mohan Shripati Shelke
Age : 36 Yrs., Occ. Agri.
All r/o Belgaon, Tq. & Dist. Beed.
11. Limba s/o Madha Shelke
(died) Through LR's
11A) Sou. Ashabai Uttam More
Age : 35 Yrs. Occu. Agri.
11B) Sou. Meena Dnyandeo Dandawate
Age : 33 Yrs. Occu. Agri.
11C) Sou. Mangala Bhaskar Bhagwat
Age : 31 Yrs. Occu. Agri.
11D) Mahadeo Limbaji Shelke
Age : 29 Yrs. Occu. Agri.
11E) Sou. Rukhminibai Limbaji Shelke
Age : 48 Yrs. Occu. Household
All r/o Belgaon, Tq. & Dist. Beed.
12. Kondiba s/o Mahada Kolpe
Age : 47 Yrs. Occu. Agriculture,
r/o as above
13. Babu s/o Sakharam Shelke,
Age : 35 Yrs. Occu. Agriculture,
r/o as above
14. Bansi s/o Dattu Kolpe
(Died) Through LR's
14A. Yuvraj Bansi Kolpe
Age : 25 years, Occu. Agril.
R/o Gelgao, Tal. and Dist. Beed
sa380.1994.odt 4
15. Raghunath s/o Dattu Kolpe
Age : 30 Yrs. Occu. & r/o as above
... RESPONDENTS
(Orig. Plaintiffs)
Mr. M. M. Patil Beedkar, Advocate for Appellant
Mr. M. K. Deshpande, Advocate for Respondent Nos. 1, 2A, 3A to 3E,
4 to 6, 7A to 7D, 8A to 8H, 9, 10A to 10D, 11A to 11E, 12, 14A and
15
CORAM : R. M. JOSHI, J.
RESERVED ON : 31st JULY, 2025
PRONOUNCED ON : 6th AUGUST, 2025
JUDGMENT :
-
1. This Appeal, filed by original defendant under Section 100 of
the Code of Civil Procedure (for short 'CPC')m takes exception to the
judgment and decree dated 08/10/1984 passed by the 2 nd Jt. C.J.J.D.,
Beed in R.C.S. No. 424/1979, which came to be confirmed in R.C.A. No.
413/1984, whereby the decree of specific performance of contract came
to be passed in favour of the plaintiffs.
2. This Court by order dated 04/03/2025 framed following
substantial questions of law:
"i) Whether the finding as regards Section 16(c) of the Specific
Relief Act, 1963 recorded by the learned Courts are perverse?
ii) Was the Suit barred by limitation?
iii) Whether the learned Courts have erred in granting
discretionary relief of specific performance to the plaintiff having
regard to his conduct?"
3. The facts which led to the filing of this Appeal can be
narrated in brief as under:-
(i) Plaintiffs, 15 in number, filed suit being R.C.S. No. 424/1979 before
C.J.J.D., Beed for decree of specific of performance of contract of sale of
lands. The suit properties as described in the plaint are Survey No. 494
admeasuring 11 acres and 16 R and Survey No. 497 half share towards
western side from 25 acres 34 R lands situated at village Limbaganesh,
Tq. and District Beed. It is the case of the Plaintiffs that Defendant was
liable to pay Rs.7000/- odd amount to City Municipality, Beed in respect
of some contract. Municipality moved the Collector and got the suit lands
attached for the recovery of said amount as land revenue. The suit
properties were auctioned. Rakhmaji purchased the suit land bearing
Survey No. 494, whereas Khandu purchased the suit land bearing Survey
No. 497 in provisional auction sale effected on 27/05/1963. The auction
sale was placed before the Collector for confirmation. Defendant in the
meantime deposited some amount and requested the Collector to grant
installments to pay the remaining amount. Collector granted his request.
The Defendant deposited a sum of Rs.5000/- on 20/04/1964 and sought
further time. The time sought was refused by the Collector and the
auction sale was confirmed by order dated 20/11/1964. The Defendant
deposited balance amount of Rs.2467.37 on 01/12/1964 and applied for
the Collector to set aside the sale. This Application was rejected by the
Collector on 29/12/1964. The challenge to the said order in Appeal
before the Collector was unsuccessful. Further exception thereto in
revision before the State Government also could not be succeeded. The
Defendant, therefore, applied to the High Court under the Article 227 of
the Constitution of India by filing Civil Revision Application No.
1675/1968. This Court by judgment dated 28/02/1972 allowed the
Petition and set aside the auction sale. The Defendant was, however,
directed to deposit the amount along with interest at the rate of 12% on
Rs.4200/- and Rs.700/- for three years. The possession of the suit
properties were directed to be restored on the payment of the said
amount along with the interest. With setting aside of the auction sale,
the Defendant continued to be the owner of the suit land.
(ii) It is the case of the Plaintiffs that immediately after provisional
auction of the suit property was done, Defendant wished to sale the suit
properties to get maximum market value and therefore requested the
Plaintiffs to purchase the same, who agreed to the purchase the
properties. Agreement to sale (i.e. Isar Pavti) came to be executed by
the Defendant with Plaintiff Nos.1 to 13 and father of Plaintiff Nos.14 and
15 sale of suit properties for total consideration of Rs.20,000/-. It is
claimed by the Plaintiffs that the paid Rs.1000/- towards earnest money
and further amount of Rs.7280/- was also paid. The remaining amount
was to be paid at the time of execution of sale deed. It is the case of
Plaintiffs that Defendant agreed that he would deposit entire dues of
Municipality. They further claimed that they approached to the Defendant
from time to time but Defendant promise to fulfill the contract within a
year. It is claimed that 23/04/1964 a registered Isar Pavti came to be
executed by the Defendant in favour of the Plaintiffs. The shares of the
Plaintiffs were also settled inter se between them. On execution of the
Isar Pavti Plaintiff Nos.1 to 13 and deceased Dattu requested the
Defendant to deposit whole of his dues and apply for setting aside
provisional auction sale but the Defendant did not do so. Plaintiffs
claimed that recently they came to know about the High Court's decision
and all this time Defendant used to tell them about the pendency of the
proceeding before the High Court for not executing sale deed. It is
claimed that over and above Rs.8280/- Plaintiffs have paid a sum of
Rs.2720/- to the Defendant on several occasions, however, the receipt is
lost. The Plaintiffs claimed that on 23/10/1979 for the first time the
Defendant refused to execute the sale deed and hence suit came to filed
on 10/12/1979 for decree of specific performance of contract.
(iii) The Defendant filed written statement denying the contentions
raised by the Plaintiffs. It is admitted that Defendant had become liable
to pay Rs.7000/- plus amount to Municipality, Beed but denied the
auction of the suit property. It is denied that by the Defendant that he
wanted to sale the suit land to any one by private negotiations to fetch
maximum market value of suit properties. It is claimed that his main
profession is agricultural and therefore, he never wanted to sale the suit
lands. It is denied that there was any agreement to sale the suit land to
the Plaintiffs. It is claimed of the Defendant that the amount of
Rs.7280/- was paid by the Plaintiffs to him which was to be returned by
him with interest within a period of three years from the execution of the
agreement dated 23/04/1974. He denied to have received Rs.2720/- or
any earnest money. In the additional statement it is claimed by the
Defendant that he was and is not in the possession of the suit land. It is
claimed that the Defendant orally asked on many occasions to the
Plaintiffs to accept the money back which was taken by him from the
Plaintiffs but the Plaintiffs did not accept the same until the decision of
the High Court. It is claimed that the suit filed by the Plaintiffs is time
barred and they have not entitled to receive the money of Rs.7280/-. It
is denied that the Plaintiffs demanded specific performance on
20/10/1979 and hence question of refusal thereof would not arise.
(iv) The learned Trial Court framed issues at Exhibit 17. On behalf of
the Plaintiffs Nana Kolpe was examined at Exhibit 23 and evidence was
led of Babu Kale at Exhibit 25. Defendant entered into witness box and
examined himself at Exhibit 28. The learned Trial Court by passing
judgment and decree dated 08/10/1984 granted specific performance of
contract on payment of remaining consideration of Rs.11720/- in the
Court within two months. The issue of execution of agreement to sale
payment of earnest money and readiness and willingness to perform part
of the contract by the Plaintiffs came to answered in favour of Plaintiffs.
The judgment and decree passed by the Trial Court came to be
challenged in Appeal before the District Court in R.C.A. No. 413/1984
unsuccessfully, hence, this Second Appeal.
4. Learned Counsel for the Defendant-Appellant submits that
the Plaintiffs have failed to prove the cause of action of 23/10/1979 for
filing the suit and therefore suit is not filed within limitation. It is his
submission that the agreement to sale is of year 1964, whereas the suit
came to be filed in the year 1979 and hence on the face of it, it is not
filed within limitation and hence deserves to be dismissed on the count
alone. It is his further submission that once a specific date is sought to
be contended by the Plaintiffs to be cause of action, the same must be
proved by leading cogent evidence. He drew attention of the Court to the
evidence of witnesses examined by the Plaintiffs to contend that witness
examined by Plaintiffs does not claim the exact date on which the
Defendant has denied execution of the sale deed. It is his further
submission that the conduct of the Plaintiffs also disentitle the Plaintiffs
from getting decree of specific performance of contract. It is his
submission that though Plaintiffs have claimed that they paid Rs.2720/-
to the Defendant, the said fact has not been proved before the Trial
Court. It is his submission by relying upon the judgment of the Hon'ble
Supreme Court in case of Major Gen. Darshan Singh (D) By Legal
Representatives and Another Versus Brij Bhushan Chaudhar (D) By Legal
Representatives, (2024) 3 SCC 489 that when the Plaintiffs made false
statements in plaint, they are not held to be entitled for discretionary
relief of specific performance. Reliance is also placed on the judgment in
case of Lourdu Mari David and Others Versus Louis Chinnaya
Arogiaswamy and Others, (1996) 5 SCC 589 . He drew attention of the
Court to the findings recorded by the Trial Court in respect of the
agreement to sale (Isar Pavti) that the sale deed would be executed after
decision of the High Court and after getting the possession and the said
period was indefinite. It is his submission that the said findings are
contrary to the documents and hence perverse. He also drew attention of
the Court to the observations made by the Appellate Court in paragraph
14 to 15 which according to him are not inconsonance with the material
on record, hence deserves to be interfered with. Thus, sum and
substance of his contention is that since the suit is barred by limitation
and as the Plaintiffs have failed to prove the cause of action so also
readiness and willingness to perform their part of the contract, they are
not entitled for discretionary relief of specific performance.
5. Learned counsel for the Plaintiffs supported the impugned
judgment and decree and contended that a concurrent findings of fact
recorded by the Court below cannot be interfered with in exercise of the
powers under Section 100 of CPC. It is his submission that perusal of the
Isar Pavti indicates that there was no time limit fixed for the specific
performance of the contract. It is his contention that in the facts of the
case which are sufficient to indicate that there was provisional sale and
confirmation thereof and the challenge thereto was unsuccessful till in
the revision before the State Government and it is only after the order
was passed by the High Court, the sale was set aside with condition that
the Defendant would pay the amount along with the interest. It is his
contention that the cause of action of refusal of execution of sale deed is
clearly spelt out in the plaint and witness has been duly examined to
substantiate the same. It is submitted that by no stretch of imagination
in can be held that the suit is barred by limitation. In so far as readiness
and willingness is concerned, pleadings and the evidence on record is
referred to. He place reliance on the judgment of the Hon'ble Supreme
Court in case of P. Daivasigamani Versus S. Sambandan, (2022) 14 SCC
793.
6. There is no dispute about the fact that the Defendant
executed Isar Pavti dated 23/04/1964 in favour of the Plaintiffs. The Isar
Pavti indicates that shares of individual Plaintiffs in the Suit property
were decided. There is further admission of the Defendant in respect of
receipt of a sum of Rs.7000/- plus amount from the Plaintiffs. In this
backdrop question arises as to whether the contention of the Defendant
about this being not a agreement to sale but money lending transaction
is probable. Once execution of the Isar Pavti is not in dispute and the
receipt of the amount is also accepted, question arises as to what would
the need for the Defendant to indicate in the Isar Pavti that 15 persons
i.e. Plaintiffs, would have specific shares in the suit property. In case of
loan transaction, such determination of share of each Plaintiff would have
never appeared in the document. Apart from this a question would arise
as to why the loan has been obtained from 15 different persons under
one document. Similarly, case sought to be made out by Defendant that
his main occupation was Agriculturist and therefore he could not have
sold suit property is not conceivable in view of admitted facts that
against contract with Municipality amounts was due from him. As against
this the case of the Plaintiffs that since there was provisional auction sale
of the suit property, Defendant wanted to get maximum values of the
suit property and hence agreed to sale the suit property for total
consideration of Rs.20,000/- is more probable. On the basis of the
evidence on record coupled with the pleadings with pleadings of the
parties it cannot be held that this is a money lending transaction but as
held by the Court below the Defendant had agreed to sale the suit
property to the Plaintiffs.
7. The initial burden is on the Plaintiff to plead and prove the
readiness and willingness to perform their part of the contract as
contemplated by Section 16(c) of the Specific Relief Act. In this regard
there is pleading in the plaint about readiness and willingness of the
Plaintiffs to perform their part of the contract. There are specific
pleadings in respect of the amounts being paid to the Defendant from
time to time and that the Plaintiffs having approached to the Defendant
with the remaining amount requesting him to accept the said. There is
no cross-examination of the Plaintiffs' witness in order to indicate that
the Plaintiffs were not ready and willing to perform their part of the
contract. Apart from this it is pertinent to note that the facts of the case
by itself indicate that as per the claim of the Defendant he approached to
the Plaintiffs for advancement of loan and which indicates their sound
financial condition. If the Plaintiffs were in position to advance loan to
the Defendant, question of taking doubt about their readiness does not
arise. Their willingness could be seen from the approach to Defendant
from time to time and on refusal by Defendant, filing of suit immediately.
Evidence led by the Plaintiffs indicates that the willingness is also shown
by them approaching the Defendant for accepting the balance amount of
consideration and to execute sale deed. Thus the finding of Trial Court
confirmed by the Appellate Court with regard to the readiness and
willingness of the Plaintiffs to perform their part of the contract is
consistent with evidence on record and hence required no interference.
8. The Defendant claims that Plaintiffs made false statement
about payment of Rs.2720/- to Defendant, as they have failed to prove
the same and relying upon judgment in case of Major Gen. Darshan
Singh (D) By Legal Representatives and Another (supra) and sought
dismissal of suit. In the instant case, the pleadings in the plaint are clear
to say that amount of Rs.2720/- is paid to Defendant but receipts thereof
are not available. In the facts of the case, the said statement cannot be
construed as false, merely because Plaintiffs failed to prove the said
payment. The Trial Court has directed Plaintiffs to pay balance
consideration to Defendant including said amount. Thus, it can not be
said that Plaintiffs filed suit on the basis of false statement. The
judgment cited supra therefore would not help Appellant in any manner.
9. On the point of limitation it is sought to be contended on
behalf of the Defendant that the exact date of denial by the Defendant to
execute the sale deed has not been proved. In order to decide the said
issue it would be relevant at first instance to take into consideration the
overall facts and circumstances of the case. Admittedly, Defendant was
liable to pay more than Rs.7000/- to City Municipality, Beed. The said
amount was sought to be recovered as land revenue. Provisional auction
sale was effected on 27/05/1963. The agreement to sale i.e. Isar Pavti
came to be executed on 23/04/1964. It is thereafter Defendant had
taken exception to the said order of provisional sale before the Authority
and finally challenge thereto was made before this Court in Civil Revision
Application No. 1678/1968. This Court by judgment dated 28/02/1972
set aside the auction sale, however, directed Defendant to deposit the
amount with interest at the rate of 12% payable to the auction
purchasers. The possession was directed to be restored to the Defendant
only on the payment of the said amount along with interest. It is
admitted fact even when the suit was filed, the possession was not
obtained by the Defendant of the suit properties.
10. In the light of this facts, the Plaintiffs have specifically
pleaded about they approaching to the Defendant from time to time to
accept the balance consideration and Defendant avoided the same. It is
averred that on 23/10/1979 when the Defendant for the first time
refused to execute the sale deed, suit came to be filed on 10/12/1979
seeking decree of specific performance. On behalf of the Plaintiffs one of
Plaintiff came to be examined. He has stated about the Defendant being
approached earlier and finally refusing to execute the sale deed. In the
cross-examination nothing could be elicited to disbelieve the statement
of the Plaintiffs.
11. As far as the exact date of refusal is concerned, the same
may not be crucial in each case for establishing a cause of action.
Needless to say that the Court is required to take into consideration as to
when the refusal is made and the circumstances in which it is made so
also consequences thereof rather than deciding the exact movement of
the refusal would be relevant. As recoded above, there were proceedings
going on before the High Court which were not informed by the
Defendant to the Plaintiffs and that Plaintiffs were time and again
approaching to the Defendant for accepting balance consideration and
the Defendant avoided to do so, refusal on the part of Defendant before
filing of the suit to execute the sale deed deserves to be accepted. In the
facts of the case it cannot be said that the Plaintiffs have deliberately not
approached to the Court for seeking decree of specific performance
earlier. Needless to say that the time is not essence of the contract in
case of sale of immovable property and that there is no specific time
limit fixed for execution of the sale deed. In the peculiar facts of the
case, it could not have been possible even for Defendant to fix a specific
date for execution owing to the pendency of the proceedings initiated by
him challenging the provisional sale and thereafter the confirmed sale.
Having regard to the overall facts and circumstances of the case, this
Court finds no reason or justification to dismiss the suit being beyond
limitation.
12. The pleadings of the parties and evidence on record and on
considering overall facts of the case, the case of Plaintiffs becomes more
probable than of the Defendant. The Hon'ble Apex Court Court has held
that time and again unless the findings are perverse, in Second Appellate
Court would does not get jurisdiction to cause interference therein. In
case of Damodar Lal vs Sohan Devi And Ors, AIR 2016 SC 379 , the
Hon'ble Supreme Court has held that the High Court in Second Appeal is
not justified in upsetting the findings which are pure questions of fact.
Further observed that even if the findings of fact is wrong, that by itself
will not constitute a question of law. According to the Hon'ble Supreme
Court the wrong finding should stem out on a complete misreading of
evidence or it should be based only on conjectures and surmises and the
safest approach on perversity is the classic approach on the reasonable
man's inference on the facts. If the conclusion on the facts in evidence
made by the Court is possible, there is no perversity. In the facts of the
case, this Court also does not find any perversity in the findings recorded
by the First Appellate Court. As a result of which in substantial questions
of law framed and recorded herein above, answer in negative. As a result
of this discussion, there is no reason or justification to cause interference
in the impugned judgment and order. Hence, Appeal stands dismissed.
Pending Civil Application, if any, stands disposed of.
( R. M. JOSHI, J. )
LATER ON
13. Learned Counsel for the Appellants seeks continuation of
interim relief for a period of six weeks.
14. Learned Counsel for contesting Respondents opposes the said
request.
15. Since the interim relief is in force since 1995, the same is
extended for a period of six weeks.
( R. M. JOSHI, J. )
ssp
