Bombay High Court
Dattu Babaji Shinde vs Maruti Krishna Shinde And Ors on 27 June, 2025
2025:BHC-AS:25753
VARSHA Digitally signed by
VARSHA VIJAY
VIJAY RAJGURU 901-sa-194-1988(j).doc
Date: 2025.06.27
RAJGURU 20:32:01 +0530
varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 194 OF 1988
Dattu Babaji Shinde, deceased by his heirs and
legal representatives:
1. Smt. Fulabai Dattatraya Shinde
2. Kum. Sangita Dattatraya Shinde
After marriage Sou. Sangita Rajendra Pawar
3. Ram Dattatrya Shinde,
Nos. 1 and 3 residing at Dhondewadi under
Kameri, Taluka Satara District Satara.
No. 2 residing at Pawarnigadei,
Taluka Satara, District Satara. ... Appellants
Vs.
1. Maruti Krishna Shinde, deceased by his heirs
and legal representatives:
1(a) Smt. Leelabai Maruti Shinde
1(b) Mr. Sanjay Maruti Shinde,
since deceased through his heirs and legal
representatives:
1(b)(i) Smt. Vaishali Sanjay Shinde
1(b)(ii) Mrs. Komal Yogesh Yadav
1(b)(iii) Mrs. Nutan Akash Gaikwad
1(c) Smt. Jayashri Rajendra Yadav
1(d) Smt. Vandana Vishwas Sapkal,
deceased by her heirs and legal
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representatives:
1(d)(i) Vishwas Sahebrao Sapkal
1(d)(ii) Mahesh Vishwas Sapkal
1(d)(iii) Sanket Vishwas Sapkal
1(e) Smt. Sadhana Navnath Chavan
2. Bajarang Krishna Shinde
3. Baban Krishna Shinde
4. Sou. Sonubai Tukaram Jadhav
5. Sou. Sarubai Bandu Shedage,
deceased by her heirs and legal
representatives:
a) Mr. Rangrao Bandu Shedage
b) Mr. Mansing Bandu Shedage
c) Mr. Jotiram Bandu Shedage
d) Smt. Premala Sunil Ghadage
6. Vaijyantabai Krishna Shinde,
deceased by her heirs and legal
representatives
a) Maruti Krishna Shinde.
b) Bajarang Krishna Shinde
c) Baban Krishna Shinde
d) Sou. Sonubai Tukaram Jadhav
e) Sou. Sarubai Bandu Shedage,
deceased by heirs and legal
representatives:-
i) Mr. Rangrao Bandu Shedage
ii) Mr. Mansing Bandu Shedage
iii) Mr. Jotiram Bandu Shedage
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iv) Smt. Premala Sunil Ghadage
f) Smt. Phulabai Namdeo Shinde.
7. Smt. Phulabai Namdeo Shinde
All agriculturists.
Nos. 1(a), 2 and 3, 6(a) to 6(c)
residing at Dhondewadi under Kameri,
Taluka Satara, District Satara
No.1(c) residing at Saspade,
Taluka and District Satara
No.1(b)(i) residing at Dhondewadi,
Post Kameri, Taluka and District Satara
No.1(b)(ii) risiding at Saspade,
Taluka and District Satara.
No.1(b)(iii) residing at Jadhavwadi,
Post Tasgaon, Taluka and District Satara
No.1(d)(i) to 1(d)(iii) residing at Varne, Taluka
and District Satara.
No.1(e) residing at Phatdarwadi,
Taluka and District Satara.
Nos. 4 and 6(d) residing at Dusale,
Taluka Patan, District Satara.
Nos. 5(a) to 5(d) and 6(e)(i) to 6(e)(iv)
residing at Angapur Tarf Targaon,
Taluka and District Satara
No.7 and 6(f) residing at Dhakatwadi,
Taluka Khatav, District Satara. ... Respondent
Mr. Pradeep Gole, for Appellant
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Mr. Sharad Bhosale i/b. Mr. Dilip Bodake for Respondent Nos.
1 to 6.
CORAM : GAURI GODSE, J.
RESERVED ON : 13th MARCH 2025
PRONOUNCED ON : 27th JUNE 2025
JUDGMENT :
-
BASIC FACTS:
1. This second appeal is preferred by the heirs and legal
representatives of defendant no.1 ('defendant') to challenge the
concurrent judgments and decrees granting specific
performance in favour of the deceased respondent ('plaintiff').
Respondent nos. 1 to 6 are the heirs and legal representatives
of the original plaintiff. The defendant is directed to get
permission from the Collector and execute a sale deed in
favour of the plaintiff by accepting the balance consideration
amount. By the impugned decree, the defendant is restrained
from interfering with the plaintiff's possession of the suit
property. The trial court's decree is confirmed in an appeal
preferred by the defendant. Hence, this second appeal.
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2. By order dated 30th June 1988, the second appeal is
admitted on the following substantial question of law:
"Whether the suit transaction is an agreement of sale or
mortgage raises a substantial question of law".
3. By order dated 2nd January 2025, the following additional
substantial questions of law are framed in view of the proviso to
sub-section 5 of Section 100 of the Civil Procedure Code, 1908
("the CPC"):
I) Whether the findings recorded by both the courts on
non-joinder of necessary parties and the suit
agreement executed for legal necessity would be
sustainable in the absence of the other co-sharers i.e.
two brothers of defendant?
II) When admittedly, the suit property is a joint family
property of defendant no.1 and his two brothers,
whether the suit agreement would be binding only on
the share of defendant no.1?
III) Despite recording the finding that defendant no.1 had
acted as a Manager of the Joint Hindu Family, whether
the first appellate court could have observed that point
no.5 i.e. whether the transaction was for legal
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necessity would not arise?
PLAINTIFF'S PLEADINGS IN BRIEF:
4. The plaintiff contended that the defendant was acting as
a manager of the joint family, and his name was entered as
manager of the joint family in the revenue record. As the
defendant was in need of money for his brother's marriage, he
entered into a contract to sell the suit property to the plaintiff for
an amount of Rs. 6,000/-, by a registered agreement dated 10 th
June 1976, by accepting Rs. 3,000/- towards the part
consideration amount. It was agreed that the defendant shall
obtain necessary permission under the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings Act
('Consolidation Act') and execute a sale deed. By a separate
agreement executed on the same day, the possession was
handed over to the plaintiff. The defendant obstructed the
plaintiff's possession and issued a notice dated 3rd June 1977,
cancelling the agreement in favour of the plaintiff. The plaintiff
replied to the said notice on 20th June 1977 and called upon the
defendant to complete the contract by accepting the balance
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consideration amount of Rs. 3,000/-. Since the defendant
refused to complete the contract, the plaintiff filed the suit for
specific performance of the agreement dated 10 th June 1976
and prayed for an injunction restraining the defendant from
obstructing the plaintiff's possession over the suit property.
DEFENDANT'S PLEADINGS IN BRIEF:
5. The defendant filed a written statement and opposed the
suit claim. The defendant denied that he was acting as a joint
family manager and that he had ever intended to sell the suit
property to the plaintiff. The defendant contended that his two
brothers are also co-owners of the suit property and the alleged
agreement cannot bind their 1/3rd undivided share. The
defendant contended that the suit is therefore bad for non-
joinder of necessary parties; thus, the suit is not maintainable.
Regarding execution of the suit agreement, the defendant
contended that the plaintiff got the said document executed by
playing fraud and misrepresentation. The defendant also
denied handing over possession to the plaintiff. The defendant
contended that he received possession of the suit property
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under the consolidation scheme on 30th March 1977. Hence,
there was no question of handing over possession on 10 th June
1976 as claimed by the plaintiff.
FINDINGS OF THE COURTS:
6. The trial court accepted a valid execution of the suit
agreement. The brothers of the defendant were held to be not
necessary parties to the suit. The plaintiff's contention
regarding the execution of the suit agreement for legal
necessity was accepted. The defendant's contention that the
suit agreement was executed by playing fraud and
misrepresentation was disbelieved by the trial court.
Permission under the Consolidation Act was held as not
necessary. The plaintiff was held to be in possession of the suit
property. The trial court held that the plaintiff was ready and
willing to perform his part of the contract and thus, entitled to a
decree for specific performance and injunction. The first
appellate court dismissed the appeal preferred by the
defendant and confirmed the trial court's decree.
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SUBMISSIONS ON BEHALF OF THE APPELLANTS:
7. The plaintiff pleaded that the defendant agreed to sell the
suit land for Rs. 6000/- and at the time of execution and
registration of the suit agreement, he paid part consideration
amount of Rs. 3,000/-. He further pleaded that possession was
handed over to him on the same day by executing a separate
receipt. However, the agreement records that before eight
days, an amount of Rs. 3000/- was paid by the plaintiff to the
defendant for his brother and that possession would be handed
over at the time of executing the sale deed. The oral evidence
led by the plaintiff does not support the pleading that Rs. 3000/-
was paid at the time of execution and registration of the
agreement. The pleading and evidence regarding the handing
over of possession are also contrary. The plaintiff pleaded that
possession was handed over on the day of the agreement by
executing a separate receipt; however, the terms of the
agreement record that possession shall be handed over at the
time of executing the sale deed. The evidence on the record
supports the defendant's contentions that on 30 th March 1977,
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the defendant received possession of the suit land under the
implementation of the consolidation scheme. The evidence on
record and the plaintiff's pleadings regarding payment of Rs.
3000/- as earnest money and receiving possession are
inconsistent. The defendant never intended to execute the
agreement for sale, and the plaintiff got the document executed
by playing fraud and misrepresentation. The defendant was in
need of money for his brother's marriage, and therefore, the
amount was taken from the plaintiff. However, the defendant
never intended to alienate the suit property. When the
defendant learnt about the document executed by playing fraud
and misrepresentation, he issued a notice to cancel the suit
agreement. The plaintiff's pleading that the suit agreement was
executed for legal necessity for the defendant's brother's
marriage supports the defendant's contention that the amount
was received from the plaintiff, as the defendant required the
amount for his brother's marriage. The pleadings in paragraph
2 of the plaint state that the amount was paid to the defendant
in the presence of the Registrar at the time of registration of the
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suit agreement. However, the contents of the suit agreement
do not support the said pleadings. The defendant's contention
regarding the amount taken for the defendant's brother's
marriage is supported by the plaintiff's witness no.5. The
witness agrees to sign only one document. Therefore, the
separate agreement and possession receipt are not proved by
any supporting evidence. The plaintiff's pleadings and the oral
evidence led by the plaintiff's witness are contrary; thus, the
plaintiff's contentions are not believable. To support his
submissions, learned counsel for the appellants relied upon the
decision of the Hon'ble Apex Court in the case of Janak Dulari
Devi Vs Kapildeo Rai1.
8. The defendant's brothers' marriage had already taken
place before the execution of the suit agreement. Hence, there
was no reason for executing the suit agreement for alienation
of the suit property. The contents of the suit agreement provide
for a period of one year for the execution of the sale deed,
however, the plaintiff never took any step for getting the
1 (2011) 6 SCC 555
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document performed in his favour, and it was only after the
defendant canceled the suit agreement, the plaintiff in
response to the notice for cancellation called upon the
defendant to execute the sale deed. Therefore, the plaintiff's
conduct shows that there was never any intention to alienate
the suit property to the plaintiff. For determining the prayer for
specific performance, it was necessary for both courts to look
at all the relevant circumstances to determine whether its
discretion to grant specific performance should be exercised.
He submitted that the plaintiff's conduct of not taking any steps
for specific performance and calling upon the defendant to
execute the sale deed only after the defendant issued notice to
cancel the agreement ought to have been considered as a
relevant factor for refusing specific performance. To support his
submissions, learned counsel for the defendant relied upon the
Apex Court's decision in the case of K. S. Vidyanadam Vs
Vairavan2.
9. It is a well-established legal principle that alienation of the
2 AIR 1997 SC 1751
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ancestral joint family property for legal necessity is to be
pleaded and proved by the purchaser. The plaintiff failed to
plead and prove the theory of legal necessity. The other co-
owners of the suit were not joined as party defendants to the
suit; hence, the plaintiff would not be entitled to specific
performance of the suit agreement in respect of the entire suit
property. Hence, the plaintiff would not be entitled to the decree
for specific performance. The nature of the suit property is
admittedly ancestral joint family property. Hence, the suit was
bad for non-joinder of co-owners as party defendants to the
suit. The plaintiff claims that the suit agreement was executed
for legal necessity; hence, the suit was bad for non-joinder of
the other co-sharers, i.e. two brothers of the defendant. In view
of the admitted fact that the suit property was an ancestral joint
family property, the suit was liable to be dismissed as bad for
non-joinder of necessary parties. To support his submissions,
learned counsel for the defendant relied upon the decision of
the Hon'ble Apex Court in the case of Moreshwar Yadaorao
Mahajan Vs Vyankatesh Sitaram Bhedi3.
3 2022 SCC Online SC 1307
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10. Despite the plaintiff's pleading that, the defendant acted
as a manager of the joint family and the suit agreement was
executed for legal necessity, the first appellate court erred in
observing that the point for a determination regarding legal
necessity would not arise. Hence, the learned counsel for the
defendant submitted that all the questions of law must be
answered in favour of the defendant.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
11. Learned counsel for the respondents ('plaintiff') submitted
that a separate agreement-cum-possession receipt was also
signed by one of the defendant's brothers. Hence, one of the
brothers had consented to the agreement, and thus, it would
also be binding upon the defendant's brothers. The pleading
regarding legal necessity is supported by evidence led by the
plaintiff's witness no.4. The evidence on record indicates that
the consolidation scheme was implemented in the year 1972.
Hence, on the date of execution of the suit agreement, the
defendant executed a separate agreement and handed over
possession of the suit property to the plaintiff. Both courts
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have, therefore, rightly held that the suit property was a joint
family property and the suit agreement was executed by the
defendant as the joint family manager for the joint family's legal
necessity.
12. The contents of the agreement, supported by the oral
evidence, clearly show that the suit agreement was an
agreement for sale. The defendant did not plead any
foundation to contend that the suit agreement was executed by
playing fraud and misrepresentation. The plaintiff's pleading
regarding alienation of the joint family property for legal
necessity is supported by witness no.5 examined by the
defendant. The plaintiff, therefore, proved that the suit
agreement was executed for the legal necessity by the
manager of the joint family. Since the alienation was proved for
the legal necessity, the defendant's brothers were not
necessary parties to the suit for the specific performance of the
contract executed by the defendant as the manager of the joint
family.
13. To support his submissions that Karta is entitled to
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alienate the property for legal necessity, learned counsel for the
plaintiff relied upon the decision of the Hon'ble Apex Court in
the case of Beereddy Dasaratharami Reddy Vs. V. Manjunath
and Another4. Learned counsel for the plaintiff further submitted
that if the Karta of the joint family executes the document for
alienating joint family property for legal necessity, the same
would be binding upon all the members of the joint family. To
support his submission, learned counsel for the plaintiff relied
upon the decision of the Hon'ble Apex Court in the case of
Radhakrishnadas and Another Vs. Kaluram (dead) through his
Lrs and others5. Learned counsel for the plaintiff, therefore,
submits that the defendant failed to prove that the suit
agreement was executed by playing fraud or
misrepresentation. Hence, the first question of law be decided
in favour of the plaintiff.
14. Learned counsel for the plaintiff further submitted that the
suit agreement executed by the defendant as Karta of the joint
family would be binding upon the other members of the joint
4 (2021) 19 SCC 263
5 AIR 1967 SC 574
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family. Hence, in the suit for specific performance of the
contract executed by the Karta of the joint family for the legal
necessity of the joint family, the other members of the joint
family are not necessary parties. Hence, the additional
questions of law should also be answered in favour of the
plaintiff.
ANALYSIS AND CONCLUSIONS:
15. I have considered the submissions made on behalf of
both parties. I have perused the papers of the second appeal,
as well as the records and proceedings. The suit agreement,
dated 10th June 1976, a registered document, is produced on
record at Exhibit-142, and the possession receipt, dated 10 th
June 1976, is produced on record at Exhibit-143. However, the
possession receipt is not part of the registered document. The
agreement records that the land is ancestral property owned by
the defendant, and he agrees to sell it to the plaintiff for a total
consideration of Rs. 6,000/- for repayment of debts and for his
brother. The agreement further records that Rs. 3,000/- was
paid before eight days, and the balance Rs. 3000/- shall be
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paid at the time of executing the sale deed within one year from
the date of receipt of permission of the appropriate authority.
The suit agreement also records that the possession would be
handed over at the time of executing the sale deed. The
defendant issued a notice dated 3rd June, 1977, cancelling the
suit agreement on the grounds that the plaintiff had obtained
the document executed in his favour through fraud and
misrepresentation. Hence, by way of notice, the defendant
cancelled the suit agreement. Only after the defendant issued
notice of cancellation did the plaintiff issue a reply, dated 28 th
June 1977, and called upon the defendant to complete the
contract. The suit was accordingly filed on 8th July 1977.
16. A perusal of the agreement indicates that it was an
agreement for sale for repayment of debts, and for the
defendant's brother; however, the document does not refer to
the execution of the agreement on behalf of the joint family by
the Karta of the joint family for family necessity. It is not in
dispute that the suit property is an ancestral joint Hindu family
property. Thus, according to the plaintiff's pleadings, if the suit
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agreement was executed for the legal necessity of the joint
family, the burden to plead and prove the legal necessity was
upon the plaintiff.
17. The defendant contended that he was in need of the
money and therefore the amount of Rs. 3,000/- was accepted
from the plaintiff. He thus contended that as the defendant was
in need of money, the plaintiff got the document for sale
executed by playing fraud and misrepresentation. Though the
defendant contended that the amount was accepted as he was
in need of money, he did not plead that it was an agreement for
mortgaging the suit property. It is not pleaded by any of the
parties that the suit agreement was executed for creating a
mortgage. Hence, neither the terms of the suit agreement nor
the pleadings claim that the suit agreement was executed to
create a mortgage. The theory of mortgage does not find a
place in the pleadings. Hence, in view of the terms and
conditions of the suit agreement, the same needs to be
accepted as an agreement for sale. There does not appear to
be any intention of the parties to create any mortgage. Hence,
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the question of law framed at the time of admitting the second
appeal is answered accordingly by holding that the suit
agreement is an agreement of sale.
18. The plaintiff's pleadings state that the suit property is an
ancestral joint family property, and the agreement was
executed for legal necessity. For proving alienation of the joint
family property for legal necessity, the other members of the
joint family would be necessary parties. The plaintiff's prayer for
specific performance of the suit agreement executed by Karta
of the joint family for legal necessity cannot be decided in the
absence of the members of the joint family. Hence, the suit is
bad for non-joinder of the necessary parties. Admittedly, the
suit property is an ancestral joint family property. It is a well-
established principle of law that the burden to prove alienation
of the joint family property for the legal necessity of a joint
family is upon the purchaser. The plaintiff failed to prove that
the agreement was executed for legal necessity. Even if the
execution of the suit agreement is accepted, the same would
not be binding on the other members of the joint family.
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19. Considering the rival pleadings, the trial court framed the
issue of non-joinder of the necessary party. The trial court
erroneously held that the suit was not bad for non-joinder of the
necessary party. Considering the admitted facts of the case as
recorded above, the members of the joint family are necessary
to decide the issue of alienation of joint family property for legal
necessity and whether any effective decree could be passed in
their absence. Hence, the first appellate court erred in holding
that the point for determination no.5 as to whether the
transaction was for legal necessity, would not arise in the
appeal. Hence, the third additional question of law is answered
in favour of the appellants, holding that the question of legal
necessity could not have remained unanswered by the first
appellate court.
20. In the decision of Moreshwar Yadaorao Mahajan, the
Hon'ble Apex Court held that a necessary party is a person
who ought to have been joined as a party and in whose
absence no effective decree could be passed at all by the court
and if a necessary party is not impleaded, the suit itself is liable
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to be dismissed. The facts of the present case are similar to
those in the case before the Apex Court, where it was admitted
that the suit property was jointly owned by the defendant, his
wife, and three sons. It was held that no effective decree could
have been passed in their absence. Therefore, the Apex Court
confirmed the High Court's judgment, which refused specific
performance of the contract on the grounds that the other
owners were not joined as necessary parties to the suit. The
legal principles settled by the Hon'ble Apex Court squarely
apply to the present case. Hence, the first additional question
of law is answered in favour of the appellants, holding that the
findings recorded by both courts to grant specific performance
of the contract are not sustainable in law.
21. In the decision of Beereddy Dasaratharami Reddy, the
Hon'ble Apex Court held that where a karta alienates a joint
Hindu family property for value either for legal necessity or for
the benefit of the estate the same would be valid and it would
bind the interest of the undivided members of the family even
when they are minors or widows. The Hon'ble Apex Court
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further held that the existence of legal necessity depends upon
the facts of each case. In the present case, the plaintiff has
failed to prove that the agreement was executed for legal
necessity. The plaintiff contended that the agreement was
executed because the defendant needed money for the
payment of debts and for his brother's wedding. However, the
suit agreement does not record that this requirement was for
the Hindu joint family. There is evidence on record to show that
the defendant's brother's marriage was performed much before
the agreement was executed. There is no material produced to
show that, for the legal necessity of the joint family or the
defendant's brother's marriage, the agreement was executed.
In the decision of Radhakrishnadas, the Hon'ble Apex Court
held that the alienee is required to establish the legal necessity
for the transaction and that it is not necessary for him to show
that every bit of the consideration which he advanced was
actually applied for meeting the family necessity. In the present
case, the issue to be decided is whether the suit agreement
was indeed executed by a Karta of the joint family for legal
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necessity. As discussed in the preceding paragraphs, the
dispute in the present case is not based on any controversy
whether the amount paid by the plaintiff was used for family
needs; rather, the dispute is whether the plaintiff can establish
that the transaction was indeed entered for family necessity.
Thus, in view of the different facts of the present case, the
decisions of the Hon'ble Apex Court relied upon by the learned
counsel for the plaintiff would not be of any assistance to his
arguments.
22. The trial court decreed the suit by directing the defendant
to obtain the necessary permission from the learned Collector
and execute the document by accepting the balance
consideration amount. The first appellate court has confirmed
the said decree. However, in view of the other issues
addressed in favour of the defendant on the points of legal
necessity and non-joinder of the necessary parties, it is
necessary to determine whether the trial court's decree for
specific performance of the suit property would be sustainable.
Even if the execution of the suit agreement and payment of Rs.
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3000/- to the defendant is accepted, what is to be decided is
whether the plaintiff is entitled to specific performance of the
contract. Admittedly, the suit property is an ancestral joint Hindu
family property, and the defendant's brothers have a share in it.
Hence, as held by the Hon'ble Apex Court in the decision of
Moreshwar Yadaorao Mahajan, in the absence of the
defendant's brothers joined as parties to the suit, no effective
decree could have been passed. Hence, the plaintiff would not
be entitled to specific performance of the suit agreement. It is
not the plaintiff's contention that he would be entitled to specific
performance of the defendant's undivided share. Hence, in
view of the findings recorded on the other substantial questions
of law holding that the plaintiff would not be entitled to the
discretionary relief of specific performance, it would be
unnecessary to examine the second additional question of law,
whether the suit agreement would be binding only on the
defendant no. 1's share.
23. The plaintiff pleaded that payment of Rs. 3000/- was
made on the date of the agreement before the Sub-Registrar,
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and possession was also taken on the same day by executing
a separate possession receipt. In the agreement, it is recorded
that payment is made before eight days, and possession would
be handed over at the time of executing the sale deed. Oral
evidence reveals that payment was made before executing the
sale deed, and the plaintiff was in possession and was
cultivating based on the possession receipt. Revenue record
relied upon in support of the theory of possession would not be
sufficient to prove possession of the plaintiff, as the entry in the
7/12 extract was a pencil entry and was never certified. Thus,
there is inconsistency in the pleading and evidence. The
Hon'ble Apex Court in the case of Janak Dulari Devi, in
paragraph 9 held that "When what is pleaded is not proved, or
what is stated in the evidence is contrary to the pleadings, the
dictum that no amount of evidence, contrary to the pleadings,
howsoever cogent, can be relied on, would apply" . Learned
counsel for the defendant relied upon the decision of the
Hon'ble Apex Court in the case of K.S.Vidyanadam to support
his submissions that the plaintiff would not be entitled to the
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discretionary relief of specific performance. The Hon'ble Apex
Court held that the Court should look into all relevant
circumstances specified in the agreement and determine
whether its discretion to grant specific performance should be
exercised. Thus, in the present case, the plaintiff's claim of
possession and the payment of Rs. 3000/- as earnest amount
for the contract cannot be accepted. Admittedly, the suit
property is a joint Hindu family property, and there was no
question of accepting the plaintiff's case of exclusive
possession over the suit property. The plaintiff would therefore
not be entitled to the discretionary relief of specific performance
and would not be entitled to a decree of injunction protecting
possession. Hence, the impugned judgments and decrees
would not be sustainable in law.
24. Hence, for the reasons recorded above, the second
appeal is allowed by passing the following order:
I) The impugned judgment and decree dated 29th
March 1985 passed by the Joint Civil Judge, Senior
Division, Satara in Regular Civil Suit No. 177 of
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1977 and confirmed by the judgment and decree
dated 11th February 1988 passed by the learned
District Judge, Satara in Civil Appeal No. 122 of
1985, is quashed and set aside.
II) Civil Appeal No. 122 of 1985 is allowed, and
Regular Civil Suit No. 177 of 1977 is dismissed with
no order as to costs.
III) Decree be drawn accordingly.
(GAURI GODSE, J.)
Page no. 28 of 28
