[Cites 7, Cited by 0]
Bombay High Court
Mahadeo S/O Rajaram Lonare vs Smt. Kantabai Wd/O Tulshiram Lonare And ... on 22 May, 2026
2026:BHC-NAG:7363
SA 350.18.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.350 OF 2018
APPELLANT Mahadeo S/o Rajaram Lonare Aged about
Ori. Defendant No.8
71 years, Occu. Railway Employee
(Retired) Through Power of attorney
holder Sou. Indubai w/o Mahadeo Lonare
R/o Krushi Nagar (Sulezari), Nagbhid Tq.
Nagbhid, Dist. Chandrapur.
Amendment carried 1-I. Indu Mahadeo Lonare W/o Mahadeo
out as per Court order
dt. 07.11.2025 Lonare, Aged 64, Occupation: Housewife,
R/O -Sulezari, PO: Nagbhid, Sub District:
Nagbhid, District: Chandrapur, State:
Maharashtra, PIN Code: 441205,
II. Sarita Pravin Duryodhan D/O Mahadeo
Lonare Aged-43, Occupation: Housewife,
C/O: Kashinath Govind Kapse, Gond
Mohalla, Near Police Chowki, Nagpur,
VTC: Jaripatka, PO: Jaripatka, Sub
District: Nagpur, District - Nagpur, State:
Maharashtra, PIN Code: 440014
III. Nisha Mahadeo Lonare D/O: Mahadeo
Lonare Aged 42, Occupation: Housewife,
R/O-Krushi Nagar at Sulezari PO:
Nagbhid Tah-Nagbhid, Sulezari Nagbhid
Chandrapur Maharashtra PIN Code:
441205.
IV. Madhuri Rajkumar Bhadke, D/o Mahadeo
SA 350.18.odt
2
Lonare, Aged 40 Occupation : Housewife,
C/o M.P. Joshim, behind Wasekar Petrol
Pump, Opposite Pujari building, Sindhi
Colony Ramnagar, Civil Line, Chandrapur,
Maharashtra PIN Code: 442401.
V. Sandip Mahadeo Lonare S/o Mahadeo
Lonare, Aged - 38, Occupation: Service,
R/o Krushi Nagar, at Sulezari P/O
Nagbhid, Tah. Nagbhid, Sulezari Nagbhid
Chandrapur, Maharashtra PIN
Code:441205.
RESPONDENTS 1. Smt. Kantabai wd/o Tulshiram Lonare,
Ori. Plaintiffs No.1 to
7 Aged about 72 years, Occu: Houshold,
R/o Krushi Nagar (Sulezari), Nagbhid Tq.
Nagbhid, Dist. Chandrapur.
2. Smt. Varsha w/o Vijay Ramteke Aged
about 37 years, Occu: Houshold, R/o
Sidarthnagar, Bhivapur. Tq. Bhivapur,
Dist. Nagpur.
3. Smt. Geeta W/o Garibdas Bansod, Aged
about 35 years, Occu: Houshold, R/o
Malmendha, Tq. Sindewahi, Dist.
Chandrapur.
4. Lata D/o Tulshiram Lonare, Aged about
34 years, Occu: Education.
5. Rita D/o Tulshiram Lonare, Aged about 33
years, Occu: Houshold.
6. Anand S/o Tulshiram Lonare, Aged about
30 years, Occu: Education,
SA 350.18.odt
3
7. Sunil S/o Tulshiram Lonare, Aged about
24 years, Occu: Education,
Respondents No.4 to 7 R/o Krushi Nagar
(Sulezari), Nagbhid Tq. Nagbhid, Dist.
Chandrapur.
Ori. Defendant No.1 8. Smt. Champabai wd/o Dhana Khobragade
to 7
aged about 77 years, Occu: Houshold, R/o
Ward No.6, Nagbhid, Tq. Nagbhid, Dist.
Chandrapur.
9. Yeshwanta S/o Dhana Khobragade Aged
about 56 years, Occu: Service, R/o
Siddharth Chouk, Sindewahi, Tq.
Sindewahi, Dist. Chandrapur,
Amendment carried 9-I. Prachi Yashwant Khobragade, Age 24,
out as per Court order
dt.16.10.25 R/o.: Sidharth chouk, Sindewahi, Tah.:
Sindewahi, Dist.: Chandrapur.
9-II Sakshi Yashwanr Khobragade, Age 21,
R/o.: Sidharth chouk, Sindewahi, Tah.:
Sindewahi, Dist.: Chandrapur
9-III Dakshina Yashwant Khobragade, Age 46,
R/o.: Sidharth chouk, Sindewahi, Tah.:
Sindewahi, Dist.: Chandrapur
10. Vasanta S/o Dhana Khobragade Aged
about 37 years, Occu: Agriculturist, R/o
Ward No.6, Nagbhid, Tq. Nagbhid, Dist.
Chandrapur.
11. Pramita w/o Vijay Ramteke, Aged about
57 years, Occu: Household, R/o
Vidyanagar, Bramhapuri, Tq. Bramhapuri,
SA 350.18.odt
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Dist. Chandrapur.
12. Smt. Saroj w/o Khushabrao Meshram
Aged about 52 years, Occu: Household,
R/o Bhoisar, Mumbai.
13. Smt. Bharti w/o Charan Bhedke Aged
about 47 years, Occu: Household, R/o
Charan Bhedke, Forest Office Etapalli,
Tah. Aheri, Dist. Gadchiroli.
14. Smt. Rechalbai @ Remalbai wd/o Robert
Singh, Aged about 67 years, occu:
Household, R/o Krishna Nagar (Sulezari),
Nagbhid, Tq Nagbhid, Dist. Chandrapur.
Amendment carried I. Jaywanta Ashok Titare, R/o.: Krushi
out as per Court order
dt.07.03.2024 Nagar (Sulezari), Nagbid, Tah.: Nagbid,
Dist.: Chandrapur (441205).
II. Franscis @ bablu Robert Singh, R/o.:
Krushi Nagar (Sulezari), Nagbid, Tah.:
Nagbid, Dist.: Chandrapur (441205).
III. Bharti Yeshudas Singh, C/o.: Amar
Bhagwan Natekar, R/o.: I.U.D.P. Colony,
Beside Mahakali Mandir, Washim, Dist.:
Washim (444505).
Amendment carried 14.i.A Akash Ashok Titare Aged about 38 years,
out as per Court order
dated 19.08.2025 Occ. Labour
14.i.B Ashwini Ashok Titare Aged about 35
years, Occ. - Nurse
14.i.C Ashish Ashok Titare Aged about 28 years,
Occ Education
14.i.D Anjali Ashok Titare Aged about 24 years,
SA 350.18.odt
5
Occ.-Student All R/o Krushi Nagar
(Sulezari) Tah.Nagbhid, Dist. Chandrapur.
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Mr. S. P. Bhandarkar, Advocate for Appellants.
Mr. A. A. Dhawas a/w. Ms. Aparna Jha, Advocates for respondent Nos.1 to
7/caveator
------------------------------------------------------------------------------------------------------------
CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 07.05.2026
PRONOUNCED ON : 22.05.2026
JUDGMENT:
1) Heard finally with consent of learned advocates for
the respective parties.
2) The present appeal is preferred under Section 100
of the Code of Civil Procedure, 1908 in order to challenge
judgment and decree dated 31.12.2010 passed by the learned
Joint Civil Judge, Junior Division, Nagbhid in Regular Civil
Suit No.6 of 2004 and judgment and decree dated
29.03.2018 passed by the learned Ad-hoc District Judge-1,
Chandrapur in Regular Civil Appeal No.44 of 2011.
3) Respondent Nos.1 to 7 are the original plaintiffs.
The appellant is original defendant No.8. Respondent Nos.8
to 13 are original defendant Nos.1 to 6. They are widow and
SA 350.18.odt
children of late Dhana Khobragade. Respondent No.14 is
original defendant No.7. The parties will hereinafter be
referred to as "plaintiffs" and "defendants".
4) The controversy in the suit pertains to agricultural
land admeasuring 0.40 H.R., being a part of land bearing old
Gat No.156/1, new Gat No.50, total admeasuring around
0.81 H.R., situated at Village Sulejhari, Tahsil Nagbhid,
District Chandrapur. The said property will be referred to as
"suit property" hereinafter.
5) The plaintiffs had filed a suit for specific
performance of contract inter alia contending that late
Tulsiram Lonare, husband of plaintiff No.1 and father of
plaintiff Nos.2 to 7, alongwith defendant No.7, had entered
into an agreement of sale dated 11.11.1979 with late Dhana,
husband of defendant No.1 and father of defendant Nos.2 to
6, inter alia agreeing to purchase the aforesaid land
admeasuring 0.81 H.R. for a consideration of Rs.12,000/-.
According to the plaintiffs, late Tulsiram and defendant No.7
had agreed to purchase half share each in the said land by
making payment of half of the agreed sale consideration
SA 350.18.odt
individually. According to the plaintiffs, initially on the date
of agreement a sum of Rs.7,000/- was paid by late Tulsiram
and defendant No.7 to the vendor late Dhana and thereafter
an amount of Rs.3,800/- was paid by them on 14.04.1980. It
is their case that on both these occasions late Tulsiram and
defendant No.7 had paid half amount each. Thus, according
to the plaintiffs, out of total sale consideration of
Rs.12,000/-, Rs.10,800/- was paid to the vendor on
14.04.1980. The agreement provides that sale deed was to be
executed around six months from the date of agreement.
6) It is the case of the plaintiffs that prior to
14.04.1980 the vendor had come to their house and
demanded amount of Rs.1,900/- from late Tulsiram and at
that time, on enquiry being made with respect to execution
and registration of sale deed, he informed that certain
formalities were required to be completed for which period of
around 2 months will be required. The plaintiffs have stated
that the vendor gave assurance to Tulsiram that since he was
already placed in possession of the suit property there was no
reason for him to worry about the execution and registration
SA 350.18.odt
of sale deed. The plaintiffs have further averred that after a
period of two months when the vendor was contacted again
by Tulsiram, he did not behave properly with Tulsiram and
asked him to contact him after a period of one month. It is
further stated that after a period of around one year from the
date stipulated for execution and registration of sale deed,
when Tulsiram and his brother-in-law contacted the vendor
(Dhana), he bluntly said that he was not ready to execute the
sale deed in terms of the agreement in favour of Tulsiram and
defendant No.7 due to increase in market value of the
property and that he was ready to refund the amount paid by
Tulsiram and defendant No.7 within a period of one year and
called upon Tulsiram to vacate the suit property and return
possession thereof. It is further stated that the vendor-Dhana
avoided to execute and register the sale deed on one pretext
or the other.
7) The above averments made in paragraph 6 of the plaint
indicate that somewhere around June 1980 the vendor asked
for period of 2 months to complete the transaction and
thereafter period up to July 1980 to complete the transaction.
SA 350.18.odt
The pleadings in paragraph 6 further indicate that the
vendor-Dhana refused to execute the sale deed in terms of
the agreement somewhere around June 1981 and offered to
return the amount and asked Tulsiram to vacate the suit
property and return possession thereof to him.
8) It is further stated in paragraph 7 of the plaint that
despite refusal on the part of vendor-Dhana, Tulsiram
remained silent keeping in mind his status village kotwal. It is
further stated in paragraph 7 that defendant No.7 assured
Tulsiram that in the event of any threat to possession, they
will take appropriate legal action against vendor-Dhana. It is
stated that in view of the aforesaid, Tulsiram did not take any
action against vendor-Dhana till his demise on 05.11.1988.
9) It will however be pertinent to state that the
plaintiffs filed application for amendment of plaint vide
Exhibit 109 on 29.08.2009. The said application came to be
allowed vide order dated 01.10.2009 and accordingly
amendment was carried out on 30.10.2009.
10) However, the affidavit of examination-in-chief of
plaintiff No.1 is dated 28.11.2007. The application for
SA 350.18.odt
amendment is filed after filing of the affidavit of
examination-in-chief.
11) The plaintiffs introduced paragraph 6A in the plaint
and contended that after hearing the representation of
vendor-Dhana, the plaintiff was surprised with such behavior.
It is stated that Tulsiram visited Dhana shortly thereafter and
was given an assurance that he will definitely execute the
sale deed as agreed and that since possession of the suit
property is already delivered there was no need to worry. The
plaintiffs have stated that the assurance to execute the sale
deed was not restricted by time.
12) The plaintiffs have stated that defendant No.8 is
real brother of late Tulsiram. It is stated that in November
2003 defendant No.8 retired from his service with Railways.
It is alleged that in November 2003 he came with a some
labourers to the suit property and started the work of laying
foundation for construction of house over a portion of 3000
to 3500 square feet in the suit property. The plaintiffs have
stated that when plaintiff No.1 made enquiries with respect
to the said conduct, defendant No.8 informed that he had
SA 350.18.odt
purchased the suit property from vendor-Dhana on
21.04.1980.
13) It is alleged that defendant No.8 took forcible
possession of area around 3000 square feet in the suit
property. The plaintiffs have amended the plaint and stated
that on 17.07.2004, the plaintiff No.5 fell ill and plaintiff
Nos.1,4,6 and 7 took her to hospital. It is stated that taking
unfair advantage of the situation, defendant No.8 erected
fencing all around the suit land except one Bandhi (0.05
H.R.,) portion abutting Nagbhid-Bramhapuri road which is in
possession of the plaintiffs.
14) The plaintiffs have prayed for a declaration that
they have become owners of the suit property by adverse
possession or alternatively for a declaration that they are
entitled to hold possession of the suit property in view of
Section 53-A of the Transfer of Property Act or, in the
alternative, for a decree for specific performance of contract
coupled with protection of possession under Section 53-A of
the Transfer of Property Act. They also sought decree of
possession of the suit property against defendant No.8 and
SA 350.18.odt
for a declaration that sale deed dated 21.04.1980 executed in
favour of defendant No.8 by late Dhana is illegal, fraudulent,
null and void and not binding on the plaintiffs. Apart from
this, decree for perpetual injunction restraining defendant
No.8 from making further construction and for mandatory
injunction for removing the construction already made is also
sought.
15) Defendant No.8 filed written statement opposing
the suit. It is the case of defendant No.8 that the agreement
dated 11.11.1979 was entered into by Tulsiram, who is his
elder brother, for and on his behalf. He has stated that
Tulsiram did not have the funds to purchase the suit property.
His contention is that since he was not available on the date
of execution of agreement, had asked Tulsiram to enter into
the agreement of sale on his behalf. Defendant No.8 has
stated that he has purchased the suit property vide registered
Sale Deed dated 21.04.1980 along with defendant No.7 and
that deceased Tulsiram and his brother-in-law Sadashiv were
present at the time of execution of sale deed with respect to
suit property in his favour. Sadashiv, who is brother of
SA 350.18.odt
plaintiff No.1 and brother-in-law of Tulsiram, is attesting
witness to the sale deed dated 21.04.1980 executed in favour
of defendant No.8. The case of defendant No.8 is that he had
allowed his brother Tulsiram and his family to reside in the
suit property. He has stated that house in which the plaintiffs
were residing was constructed by him.
16) Based on rival pleadings, issues were framed in the
suit on which both sides led their evidence. The plaintiffs
have examined plaintiff No.1 as their witness. Plaintiff No.1
filed an affidavit of examination-in-chief dated 28.11.2007
(Exhibit 88). Thereafter, in view of amendment to the plaint,
additional affidavit of examination-in-chief dated 16.12.2009
came to be filed vide Exhibit 114. The contents of additional
affidavit are pertaining to averments in paragraph 6A of the
plaint whereby a stand is taken that after the initial dispute,
Dhana had reassured Tulsiram that he will execute the sale
deed in his favour without specifying any time.
17) In her cross-examination, she has stated that she
was not aware about the sale deed dated 21.04.1980
executed in favour of defendant No.8. She further stated that
SA 350.18.odt
defendant No.8 never informed her about sale deed with
respect to the suit property in his favour. She further denied
that defendant No.8 informed her about the sale deed in his
favour in the year 2004. She stated on second occasion in the
cross-examination that she was not aware as to when sale
deed with respect to suit property was executed. She also
stated that she was not aware as to whether reference to sale
deed dated 21.04.1980 was made in her affidavit of
examination-in-chief. She has admitted that name of
defendant No.8 was mutated in the revenue records.
18) As regards limitation, she denied the suggestion
that her husband and brother Sadashiv were aware about the
sale deed dated 21.04.1980. The brother of plaintiff No.1,
Sadashiv, is also examined as a witness (P.W. 2) by the
plaintiffs. He is attesting witness to the sale deed dated
21.04.1980. The witness has deposed about execution of
agreement dated 11.11.1979 in favour of Tulsiram and has
stated that Tulsiram was placed in possession of the suit
property in terms of the agreement. The witness has also
stated that Tulsiram had made repeated requests to the
SA 350.18.odt
vendor-Dhana for completing the sale transaction. He has
made a positive statement that after a period of around six
months from the date of execution of agreement, he had been
to the vendor-Dhana alongwith Tulsiram requesting him to
execute the sale deed and at that time the vendor expressed
remorse for his earlier behavior and assured that he would
complete the sale transaction.
19) In his cross-examination, Sadashiv (PW-2) has
specifically admitted that he was aware about sale deed
executed by vendor-Dhana in favour of defendant No.8. The
evidence of this witness assumes significance since he is
attesting witness to sale deed. There is no positive statement
in the examination-in-chief that he did not inform the
plaintiffs or Tulsiram about execution of sale deed dated
21.04.1980 in favour of defendant No.8.
20) The other two witnesses of the plaintiffs are
examined with respect to physical possession of plaintiffs
over the suit property. They have deposed that the plaintiffs
were in possession of the suit property and that defendant
No.8 had taken forcible possession somewhere around the
SA 350.18.odt
year 2003.
21) Defendant No.8 entered the witness box and
reiterated the contents of his written statement in the
examination-in-chief. In the cross-examination, questions
were put to him with respect to his salary while working with
Railways, about his savings and the manner in which he
arranged funds for making alleged payment of Rs.3,500/-
and 1900/-. He has stated that he could not state as to when
he had made payment of Rs.3,500/- to his brother Tulsiram
for entering into the agreement with respect to suit property
with Dhana. He has stated that the original agreement was in
custody of his brother Tulsiram and that he never asked him
to give the original agreement to him. He denied the
suggestion that Tulsiram was in possession of the suit
property in terms of the agreement. Questions were also put
to him with respect to the sale consideration reflected in the
sale deed dated 21.04.1980. It must be stated that although
in the agreement of sale the total sale consideration is
mentioned as Rs.12,000/-. The sale consideration reflected in
the sale deed is Rs.10,000/-.
SA 350.18.odt
22) Defendant No.8 also examined defendant No.7,
who is the co-purchaser. She has supported the case of
defendant No.8 that defendant No.8 had given an amount of
Rs.3,500/- to Tulsiram in order to enter into agreement of
sale with respect to suit property on his behalf. She stated
that Tulsiram and his brother-in-law Sadashiv (P.W. 2) were
present when sale deed dated 21.04.1980 was executed in
her favour and in favour of defendant No.8. She stated that
Tulsiram was residing in the suit property as permitted by
defendant No.8. In her cross-examination, she admitted that
she had accompanied Tulsiram while the agreement of sale
was executed. She stated that contents of the agreement were
written as per statement of Dhana. She admitted that she and
Tulsiram were in occupation of the suit property from the
date of agreement.
23) Defendant No.8 also examined another attesting
witness to the sale deed dated 21.04.1980.
24) After hearing the arguments, the learned Trial
Court has decreed the suit in favour of the plaintiffs by
granting a decree for specific performance of contract
SA 350.18.odt
directing defendant Nos.1 to 8 to execute sale deed with
respect to suit property in favour of plaintiffs. The learned
Trial Court declared that the sale deed dated 21.04.1980
executed in favour of defendant No.8 is illegal, void and not
biniding on plaintiffs. The learned Trial Court also directed
defendant No.8 to deliver possession of the suit property to
the plaintiffs and also passed a decree for perpetual
injunction restraining the defendants from obstructing
possession of the plaintiffs over the suit property. Appeal
preferred by the defendant No.8 also came to be dismissed by
the learned First Appellate Court.
25) These concurrent decrees are subject matter of
challenge in the present second appeal. The second appeal
came to be admitted vide order dated 10.04.2019 on the
following substantial questions of law:-
"Whether the suit for specific performance
was filed within limitation ?
Whether the pleadings in the plaint
regarding fraud are sufficient as per Order VII
of the Civil Procedure Code and whether such
SA 350.18.odt
pleadings constituted fraud so as to set aside
sale-deed in favour of the appellant ?
Whether sale-deed Exhibit 119 dated 21-4-
1980 can be bad in law, particularly when there
is consistent evidence on record that at the time
of sale-deed Exhibit 119, Tulshiram the husband
of plaintiff 1 and brother of plaintiff PW 2-
Sadashiv were present at the time of sale-deed
Exhibit 119 and PW 2-Sadashiv has signed the
sale-deed as a witness ?"
AS TO SUBSTANTIAL QUESTION OF LAW 1 AND 3
Whether the suit for specific performance
was filed within limitation ?
Whether sale-deed Exhibit 119 dated 21-4-
1980 can be bad in law, particularly when there
is consistent evidence on record that at the time
of sale-deed Exhibit 119, Tulshiram the husband
of plaintiff 1 and brother of plaintiff PW 2-
Sadashiv were present at the time of sale-deed
Exhibit 119 and PW 2-Sadashiv has signed
SA 350.18.odt
the sale-deed as a witness ?
26) Limitation for filing suit for specific performance of
contract is prescribed under Article 54 of the Limitation Act.
The limitation prescribed is of three years, the starting point
of limitation being the date stipulated in the agreement for
execution of sale deed or in cases where such date is not
fixed, it commences from the date of refusal on the part of
the vendor/defendant.
27) In the case at hand, the agreement dated
11.11.1979 states that the sale deed will be executed within a
period of six months from the date of agreement i.e. on or
before 11.05.1980. The limitation will therefore commence
from 12.05.1980. Even if limitation is computed from the
date of refusal, perusal of paragraph 6 of the plaint will
indicate that the vendor-Dhana had refused to execute sale
deed in favour of purchase-Tulsiram in May 1981. It is
specifically stated in paragraph 6 of the plaint that
somewhere around one year after the stipulated period for
execution of sale deed i.e. a period of six months from the
date of execution of agreement i.e. 11.11.1979, the
SA 350.18.odt
purchaser-Tulsiram and his brother-in-law (P.W. 2) had been
to Dhana-vendor with a request to complete the sale
transaction and at that time the vendor bluntly refused to
execute the sale deed. This statement in paragraph 6 is
required to be read in conjunction with paragraph 7 of the
plaint wherein the plaintiffs have stated that despite refusal
on the part of vendor-Dhana, Tulsiram did not take any steps
till his demise on 05.11.1988. It is stated that deceased
Tulsiram did not take any action having regard to status of
the vendor who was village Kotwal at the relevant time.
28) It will also be pertinent to state that after the plaint
is amended in order to incorporate paragraph 6A, the
plaintiffs have stated that the vendor had a quarrel with his
family members and therefore he behaved rudely with
Tulsiram and immediately after a period of two to three days
thereafter he assured Tulsiram (purchaser) that there was no
need to worry and that he will complete the transaction as
promised. The plaintiffs have made a specific statement in
paragraph 6A that this time the vendor-Dhana did not
stipulate any time frame for completing the transaction.
SA 350.18.odt
29) The pleadings in paragraph 6A are incorporated
after filing of the affidavit of examination-in-chief (exhibit
88) which is dated 28.11.2007. The amendment application
(Exhibit 109) is filed on 29.08.2009. The plaint is amended
obviously in order to address the aspect of limitation.
30) It is apparent from pleadings in paragraph 6A that
the tentative period when the alleged assurance was given by
vendor-Dhana to Tulsiram is not mentioned. It cannot be
ascertained as to whether this assurance was given two to
three days after June 1980 when the vendor was approached
with request to execute sale deed on the first occasion or two
to three days after June 1981, when the request made for
second time. In this regard, it must be stated that in
paragraph 6 of the plaint the plaintiffs have stated that
initially Tulsiram had been to the vendor-Dhana with a
request to execute the sale deed somewhere around June
1980 when the vendor did not behave properly and asked
Tulsiram to contact him after a period of one month. It is
then stated that after a period of one year i.e. in June 1981
when Tulsiram and his brother-in-law Sadashiv, (P.W. 2) had
SA 350.18.odt
contacted vendor-Dhana for completing the sale transaction
he had bluntly refused to do so. The pleadings in paragraph
6A are vague and lacking in material particulars with respect
to the tentative period of alleged assurance.
31) This pleading in paragraph 6A is required to be
viewed in the backdrop that P.W. 2 Sadashiv is real brother of
plaintiff No.1 and brother-in-law of Tulsiram and also
attesting witness to the sale deed dated 21.04.1980 executed
in favour of defendant No.8. The question of alleged
assurance being given by vendor in the presence of Sadashiv
(PW-2) does not arise. If such assurance was given in
presence of Sadashiv (PW-2) he would obviously confront the
vendor about prior sale deed in favour of defendant No.8. In
his cross-examination, PW-2 has specifically admitted that he
was all the while aware about sale deed dated 21.04.1980 in
favour of defendant No.8. There is no statement in the
examination-in-chief of Sadashiv that he did not inform
Tulsiram about execution of sale deed dated 21.04.1980 in
favour of defendant No.8. It is most improbable that PW-2,
who is brother of plaintiff No.1, did not inform her husband
SA 350.18.odt
about execution of sale deed with respect to the suit property
in favour of defendant No.8, although the same was in utter
disregard to the agreement of sale dated 11.11.1979
executed in favour of his sister's husband. It is inconceivable
that despite execution of sale deed dated 21.04.1980, about
which Sadashiv (PW-2) was aware, he had accompanied
Tulsiram to request vendor-Dhana to execute sale deed
somewhere around June 1981. What is even surprising is that
it is not even the case of plaintiffs that relation between
Tulsiram and/or plaintiffs on one hand and Sadashiv, brother
of plaintiff No.1, on the other hand were strained at any
point of time. Rather, the relations appear to be cordial and
therefore Sadashiv had allegedly accompanied Tulsiram with
a request to the vendor to execute sale deed in terms of
agreement.
32) It appears from reading of plaint that the vendor-
Dhana had specifically denied to execute sale deed in favour
of Tulsiram in June 1981. It also appears from the evidence
that the vendor had executed sale deed with respect to suit
property in favour of defendant No.8 on 21.04.1980 in
SA 350.18.odt
presence of Sadashiv (brother of plaintiff No.1), who signed
the sale deed as attesting witness and categorically admitted
that he was aware about the sale deed dated 21.04.1980 all
throughout. It is also a matter of record that there is no
statement by P.W. 2 Sadashiv that he did not apprise Tulsiram
or plaintiffs about the sale deed dated 21.04.1980. The
execution of sale deed dated 21.04.1980 in favour of
defendant No.8 by itself is refusal on the part of vendor-
Dhana to execute sale deed with respect to suit property in
favour of Tulsiram. Apart from this there is a categorical
statement in the plaint about refusal to execute the sale deed
somewhere around June, 1981.
33) It will also be appropriate to refer to cross-
examination of plaintiff No.1 where she has stated that she
was not aware about sale deed executed by vendor in favour
of defendant No.8. She has again denied that defendant No.8
appraised her about the sale deed. She again denied that in
the year 2003 defendant No.8 apprised her about sale deed
in his favour. The statements in the cross-examination are
contrary to the case set-up by the plaintiffs in the plaint with
SA 350.18.odt
respect to knowledge regarding sale deed dated 21.04.1980.
In view of the above, it must be held that plaintiff No.1 was
all the while aware about the sale deed dated 21.04.1980
executed in favour of defendant No.8, particularly, since her
brother is attesting witness to the said sale deed and he has
unequivocally admitted that he was all throughout aware
about the said sale deed.
34) In view of the overwhelming evidence on record
coupled with the pleadings in the plaint itself, it is clear
beyond any doubt that the claim for specific performance in
the suit, which is filed on 04.02.2004, is hopelessly barred by
limitation. Both the learned Courts have not adverted to the
pleadings properly. Reading of plaint meaningfully clearly
reveals that the prayer for specific performance is time
barred. The explanation that plaintiffs were not aware about
sale deed dated 21.04.1980 in favour of defendant No.8 is
also falsified by categorical statement of plaintiff No.1 in her
cross-examination.
35) The learned Courts have failed to appreciate that it
is the case of plaintiffs that they came to know about the
SA 350.18.odt
fraudulent sale deed in favour of defendant No.8 only in
November 2003 when defendant No.8 tried to committ a
trespass over a portion of suit property and upon being
confronted with respect to his alleged right over the suit
property, he divulged that he had purchased the same vide
sale deed dated 21.04.1980. However, plaintiff No.1 has
expressly denied in her cross-examination that defendant
No.8 informed about the sale deed in his favour. Thus, the
plaintiffs have failed to prove the allegation of concealment.
The cumulative effect of this material is that plaintiffs were
and during his lifetime Tulsiram also aware about the sale
deed with respect to suit property in favour of defendant
No.8. Both the learned Courts have failed to consider this
aforesaid vital aspects while arriving at a conclusion with
respect to alleged fraud by defendant No.8.
36) Substantial questions of law Nos.1 and 3 are accordingly
answered in favour of the appellant/defendant No.8 and
against the plaintiffs/respondent Nos.1 to 7.
AS TO SUBSTANTIAL QUESTION OF LAW 2
Whether the pleadings in the plaint regarding
SA 350.18.odt
fraud are sufficient as per Order VII of the Civil
Procedure Code and whether such pleadings
constituted fraud so as to set aside sale-deed in
favour of the appellant ?
37) At the outset, it must be stated that pleadings with
respect to fraud, misrepresentation, coercion, etc. are
required to be made in accordance with Order VI Rule 4 of
the CPC. Order VI Rule 4 of CPC states that in cases of fraud,
misrepresentation, etc., the pleadings must not only consist of
material facts but also material particulars. It is held by a
catena of decisions that issue with respect to fraud never
arises for consideration unless the pleadings satisfy the
mandate of Order VI Rule 4 of CPC. Reference can be
profitably made to the following decisions in this regard:-
i. AIR 1951 SC 280 (Bishundeo Narain & anr.
Vs. Seogeni Rai & Jagernath)
ii. 2010 (5) SCC 104 (Saroop Singh v. Banto
and Others.)
iii. 2007 (4) Mh.L.J. 43 (Kisan Ramji Khandare
v. Kaussalyabai Gangaram Korde and Others )
SA 350.18.odt
38) In the present case, sale deed of the year 1980 is
assailed in a suit filed in the year 2004. The explanation
offered is that the plaintiffs came to know about the said sale
deed only in November-2003. The plaintiffs have stated that
in November 2003 defendant No.8 committed trespass over
the suit property and on being asked about his right, he
divulged that he had purchased the suit property vide
aforesaid sale deed dated 21.04.1980. It is thereafter stated
that the plaintiffs went to the office of the concerned Sub-
Registrar and collected copy of the sale deed in question. It is
not in dispute that brother of plaintiff No.1, who is examined
as PW-2, is attesting witness to the said sale deed. The plaint
also makes reference to the role played by PW-2 in paragraph
6 where it is stated that PW-2 had accompanied Tulsiram to
the house of the vendor in order to make a request to execute
the sale deed. Thus, the pleadings themselves show that PW-2
was aware about the agreement dated 11.11.1979 executed
in favour of Tulsiram, husband of his sister. There is no
pleading in the plaint that on obtaining copy of the sale deed,
SA 350.18.odt
the plaintiffs made enquiries about the same from PW-2. This
appears to be very unbelievable. The contention that Tulsiram
did not press for execution of sale deed, although he had paid
90% of the sale consideration, is also difficult to believe. It is
stated in the plaint that Tulsiram had paid 90% of the
consideration in the year 1980 and on two occasions, the
vendor (Dhana) had refused to execute sale deed. The
explanation that Tulsiram did not take action only because
the vendor was village Kotwal is difficult to accept. This is
more so because his brother-in-law, Sadashiv (PW-2) is
attesting witness to the sale deed executed in favour of his
brother, i.e. defendant No.8. In cases of fraud, concealment
is an essential element. If defendant No.8 was to
clandestinely get sale deed with respect to a suit property
registered in his favour, although his brother Tulsiram had
entered into an agreement and paid the sale consideration,
normally he would not take his brother-in-law, Sadashiv, as
attesting witness to the sale deed. This indicates that there
was no attempt to conceal the sale transaction. In the
considered opinion of this Court, it was necessary for the
SA 350.18.odt
plaintiffs to explain this circumstance, as to why, despite
Sadashiv being attesting witness to the sale deed, they or
Tulsiram were not aware about the said sale deed. This is a
very material particular with regard to which the plaint is
silent. Only reference that can be drawn is that Tulsiram and
plaintiffs were all the while aware about the sale deed dated
21.04.1980 executed in favour of defendant No.8. The plaint
averments thus clearly fail to make out a case of fraud.
39) Both the learned Courts have committed serious
error of law in not dealing with the pleadings of the plaintiffs
properly. The learned Courts should have appreciated that
defendant No.8 had title deed with respect to suit property in
his favour. As against this, the plaintiffs' predecessor, Tulsiram
had an agreement of sale dated 11.11.1979, which is the
foundation of the claim of plaintiffs. The plaintiffs claim that
the sale deed dated 21.04.1980 executed in favour of
defendant No.8 is obtained fraudulently. The burden of
proving this fraud was upon the plaintiffs. The learned Courts
have, however, wrongly shifted the burden to prove
genuineness of his transaction upon defendant No.8.
SA 350.18.odt
40) The learned Courts should have appreciated that it
is inconceivable that Tulsiram remained silent and did not
convert the agreement in his favour into a sale deed during
his life time, although he expired after a period of around 9
years after execution of the agreement.
41) The Courts have not even dealt with the aspect of
brother of plaintiff No.1, being attesting witness to the sale
deed dated 21.04.1980 in favour of defendant No.8, which is
a very strong circumstance to infer genuineness of the said
sale transaction and knowledge thereof to Tulsiram and the
plaintiffs. The learned Courts failed to appreciate that there is
no explanation from the plaintiffs for silence on the part of
Sadashiv and not divulging the fact of sale deed in favour of
defendant No.8, although as per the version of plaintiffs,
Sadashiv was aware about the alleged agreement dated
11.11.1979 in favour of Tulsiram.
42) The learned Courts should have appreciated that
pleadings of plaintiffs are not sufficient to make out a case of
fraud.
43) Substantial question of law No.2 is, therefore,
SA 350.18.odt
answered in favour of appellant/defendant No.8 and against
respondent Nos.1 to 7/plaintiffs.
ADVERSE POSSESSION
44) The learned advocate for the respondent
contends that the decree should not be disturbed, in as much
as the plaintiffs had perfected their title over the suit property
by way of adverse possession. She draws attention to the
prayer clause in the plaint and contends that the principal
prayer in the plaint was that the plaintiffs had perfected their
title over the suit property by way of adverse possession.
Faced with a situation that the plaintiffs claim to be in
possession of the suit property on the basis of an agreement
of sale and have stated that the vendor had promised to
execute the sale- deed without fixing any time-frame, the
learned Advocate for the plaintiffs contends that the
possession is permissive qua the vendor, however, it is
adverse qua the defendant No.8.
45) At the outset, the plaintiffs do not admit
ownership of defendant No.8 over the suit property. They
have also stated that they were never aware about ownership
SA 350.18.odt
of defendant No.8 i.e. sale-deed executed in favour of
defendant No.8 till November 2003. The suit is filed on
04.02.2004. Since they were not aware about the sale-deed
in favour of defendant No.8, they were obviously not aware
about his title over the suit property.
46) It is well settled that adverse possession is notorious
possession and that in order to make out a case of title being
perfected by adverse possession, it must be established that
the person claiming ownership by adverse possession was
holding possession for a period of 12 years or more, disputing
the title of the real owner with the knowledge of the real
owner, the starting point of limitation being the date of
knowledge that possession is being held adverse to the title of
real owner.
47) Since the plaintiffs do not admit title of defendant
No.8 over the suit property, it will not be open for them to
contend that they have perfected their title over the suit
property by adverse possession against defendant No.8. The
judgment in the case of Dagadabai (Dead) by Lrs Vs. Abbas
Alias Gulab Rustum Pinjari, reported in (2017) 13 SCC 705,
SA 350.18.odt
relied upon by learned advocate for the plaintiffs itself
reiterates the settled legal principle that unless the title of the
other side is admitted, plea of adverse possession cannot be
taken. Likewise, since the plaintiffs claim that they were not
aware about title of defendant No.8 till November, 2003, the
question of their claiming adverse possession against him
does not arise.
48) The contention with respect to adverse possession is
rejected as such.
49) The following facts lead to an irresistible conclusion
that late Tulsiram and the plaintiffs were always aware about
sale deed dated 21.04.1980 executed by vendor - Dhana in
favour of defendant No.8:-
i. Tulsiram did not take any steps to enforce the
agreement till his demise i.e. 05.11.1988;
ii. after his demise, the plaintiffs also did not take any
steps for enforcement of agreement;
iii. sale deed dated 21.04.1980 is executed in favour of
defendant No.8, real brother of Tulsiram;
iv. Sadashiv (PW-2), who is brother of plaintiff No.1
SA 350.18.odt
was aware about agreement dated 11.11.1979 in favour of
Tulsiram, is attesting witness to the sale deed dated
21.04.1980 in favour of defendant No.8;
v. there is no statement by him in his examination-in-
chief that he did not apprise the plaintiffs or deceased
Tulsiram about sale deed in favour of defendant No.8;
vi. Sadashiv (PW-2) admitted that he was aware about
sale deed in favour of defendant No.8 ever since date of the
sale deed; and
vii. the plaintiff No.1 has retracted from the stand
taken in the plaint that they came to know about the sale
deed in favour of defendant No.8 only in November 2003, in
her cross-examination.
50) The above circumstances are sufficient to infer that
the sale transaction dated 21.04.1980 is not actuated by
fraud as alleged. It must therefore be held that the plaintiffs
are not in possession of the suit property on the basis of
agreement of sale dated 11.11.1979 and the version of
defendant No.8 that he permitted Tulsiram and plaintiffs to
occupy the suit property will have to be accepted.
SA 350.18.odt
51) In the result, the second appeal is allowed as
under:-
I. Judgment and decree dated
31.12.2010 passed by the learned Joint Civil
Judge, Junior Division, Nagbhid in Regular
Civil Suit No.6 of 2004 and judgment and
decree dated 29.03.2018 passed by the
learned Ad-hoc District Judge-1, Chandrapur
in Regular Civil Appeal No.44 of 2011 are
quashed and set aside.
II. Regular Civil Suit No.6 of 2004
decided by the learned Joint Civil Judge,
Junior Division, Nagbhid is dismissed.
III. Respondent Nos.1 to 7 (plaintiffs) to
bear costs of appellant/defendant No.8.
52) Since the order is pronounced during vacation and
learned advocates for the respective parties are not present,
office is directed to send a separate communication to the
respective learned advocates on their registered email
SA 350.18.odt
address and cell phone numbers.
(ROHIT W. JOSHI, J.)
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