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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 5 OF 1993.
Date of decision: 27TH FEBRUARY, 2009.
For approval and signature
HON'BLE MR. JUSTICE K.U.CHANDIWAL
1. Whether the Reporters of Local Papers ] Yes/No
may be allowed to see the Judgment ]
2. To be referred to the Reporter or not ? ] Yes/No
3.
Whether Their Lordships wish to
the fair copy of the Judgment ?
see ]
]
Yes/No
4. Whether this case involves a substantial] Yes/No
question of law as to the interpretation]
of the Constitution of India, 1950, or]
any order made thereunder ? ]
5. Whether it is to be circulated to the ] Yes/No
Civil Judges ? ]
6. Whether the case involves an important ] Yes/No
question of law and whether a copy of ]
the Order should be sent to Bombay, ]
Goa and Nagpur Office ? ]
BD VADNERE
(PS Hon'ble Judge)
uniplex/agp/bdv5.93.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.5 OF 1993.
Shri Hari Kashiram Sonawane
Age: 57 Yrs., occu. --
R/o Shirsad, Tq. Yawal,
District Jalgaon, since
deceased through legal heirs -
1A) Namdeo Hari Sonawane
1B) Santosh Hari Sonawane
1C) Rajendra Hari Sonawane
1D) Janabai Hari Sonawane
1E) Ramabai Suresh Koli
1F)
Jayavantabai w/o Keshav
Salunke.
All are adults and residents
Of Shirasad, Tq. Yawal
District Jalgaon. .. APPELLANTS
(Orig.Defendants)
VERSUS
Shri Vasudeo Hirman Kotil
Age:58 Yrs., Resident of
Police Khurd, Ta. Yawal
District Jalgaon. .. RESPONDENTS.
...
Mr.A.N.Nagargoje, Adv. h/for Mr.VJ Dixit, Sr.Counsel
for Appellants
...
CORAM : K.U.CHANDIWAL, J.
Date: 27.02.2009.
JUDGMENT:
. Heard learned Counsel for the appellants.
2) The Judgment and decree directing the
defendant to execute saledeed in favour of plaintiff
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(Respondent) is under challenge in Second Appeal.
3) The facts of the case are :
. The defendant and his brother Grangaram has
agreed to sell 2 acres 4 gunthas land for total
consideration of Rs.11,000/- and plaintiff paid an
amount of Rs.8,000/- and he received possession on the
next day of Registered agreement of sale (Exh.83).
After 4 years, the plaintiff again paid Rs.500/- under
a receipt (Exhibit-89) to the defendant on 10.03.1977.
It was agreed, the defendant to execute sale deed in
respect
from Collector.
of suit land after he had obtained permission
The application for Collector’s
permission remained with plaintiff, since it was not
submitted any time. It is alleged, the defendant was
avoiding to obtain the permission. The plaintiff
asked defendant and his brother by notice dated
30.11.1979 to execute the saledeed.
4) Defendant denied the nature of transaction to
be of sale it as a money lending transaction for loan
of Rs.4,000/- but plaintiff showed payment for Rs.
8,000/- allegedly made at home. Defendant was not
absolute owner of property. There could not be sale
of property, as sale of agricultural lands is
prohibited and Collector’s permission was mandatory.
It was a Inam land and sales are prohibited due to
implementation of Bombay Prevention of Fragmentation
and Consolidation of Holdings, Act. It was agreed
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that to satisfy the loan amount, the plaintiff will
collect the income by yield of the suit land for five
years. Since plaintiff has enjoyed exhausted, the
five years’ agreed period, defendants do not owe to
the plaintiff. He denied the subsequent Receipt of
Rs.500/- (Exh.89). The agreement of sale is not
enforceable in law.
5) The learned Civil Judge, Junior Division,
framed 23 Issues as per Exhibit-71, recorded
plaintiff's readiness to perform his part of contract
and accepted the plaintiff's contention for specific
performance of
ig contract. The learned
death of another executant to document is not fatal to
Judge felt,
transaction.
6) The first Appellate Court, while confirming
the decree, accepted that defendant and his brother
has executed the Agreement of sale, however recorded
that 7/12 extract refers half share which is 84 R.
and as Gangaram is no more, hence defendant is
absolute owner of the property.
7) The first Appellate Court recorded, agreement
of sale provided completion of sale within 30 days of
permission, and transaction is not hit by limitation.
It found, the suit land could not be said to be Inam
land and land is not a fragment requiring permission.
8) This Second Appeal was admitted on 29.1.1993
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on following grounds :
(i) When there are two persons, who contracted
jointly and if one of them is not brought forth by the
other party to that contract, then, it is the question
of law in respect of the deficiencies of the contract,
agreement of sale, validity of that contract and the
enforceability of such contract.
(ii) Total neglection of the provisions of the
Fragmentation Act is also the point of law that can be
decided in the Second Appeal.
9) The submission of Counsel for the appellants
commenced from 23rd January, 2009 and was adjourned to
27th January, 2009. On that day, at the instance of
Counsel for the respondent, it was adjourned to 28th
January, 2009. The submission of Counsel for the
appellant completed on 28th January, 2009. It was
adjourned to
30.01.2009 at 3.00 p.m. to facilitate
the Counsel for respondent to make his submissions.
Again it was adjourned to 3rd February, 2009 as prayed
by both the Counsels. However, the matter was not
attended. Mr.Nagargoje Counsel for the appellant in
writing has communicated the counsel for the
respondents about the next date. The matter was
adjourned to 5th February, 2009. Counsel for the
respondent was again communicated, however, he did not
remain present. The matter came to be adjourned to
9th February, 2009. Respondent’s Counsel did not
attend the matter. Again since there was no response
from respondent, the submissions of Mr. Nagargoje
were heard, the matter came to be adjourned to 12th
Febraury, 2009 under the caption of Judgment. On that
day, since Counsel for the respondent did not turn up,
Mr. Nagargoje again made his submissions informing
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non-compliance of Section 16-C of the Specific Relief
Act. There was written communication to the Counsel
for respondent, but he did not turn up. Matter was
adjourned to 20th February, 2009. The noting date
24th February, indicates that Mr. Nagargoje for the
appellant has substantially argued the matter. He has
communicated to Mr. S.R.Barlinge, learned Counsel for
the respondents. There was no response. There is no
argument from the respondents in spite of availing
sufficient opportunities and hence the matter was kept
for Judgment on 27th February, 2009 at 2.30 p.m. On
27th February, 2009, the Counsel for the respondent
did not
pronounced.
turn
ig up, the judgment was
The conduct of the respondents Counsel is
consequently
demonstrative of apathy to appear in old matters and
the Court had no option but to proceed with the
matter, with available material without assistance
from the respondents Counsel.
10) The Registered Agreement of ale in question is
dated 28.12.1974, Receipt of Rs.500/- is dated
10.3.1977; Notice was issued on 30.11.1979 and suit
is filed on 22.1.1980. It is an admitted fact, the
original application under signature of defendant and
his brother, to be submitted to Assistant Collector
was with plaintiff. Both the Courts held making of
application was a obligation cast on the defendant.
However, they did not consider that, when application
was collected by plaintiff, it was plaintiff to
comply. The statements of Seller and purchasers are
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required before said authority, consequently, casting
responsibility on defendant alone and hence reckoning
period of limitation from date of notice, was not a
correct legal approach. It more lean to the fiction
of Courts.
11) The Agreement (Exh.83) specify handing over
possession to the plaintiff at the time of sale-deed,
still plaintiff asserts to be in possession since
1974. Even otherwise, owing to the law in prevalence
at the material time, defendant could not part
possession based on agreement of sale, unless,
transaction
Collector.
is recognized and approved by
Section 7(1) of Bombay
Assistant
Prevention of
Fragmentation and Consolidation of Holdings Act, 1947,
restricts to transfer of any fragment in respect of
which a notice has been given under sub-section (2) of
Section 6 (except a owner of) a contiguous survey
number or recognized sub-division of a survey number;
The inhibition is applicable to even the Agreement.
The plaintiff was admittedly not possessing contiguous
survey number. The transaction was not of entire Gut
number, but for a piece of 84 R which legally could
not be segregated, as property of four brothers was
joint. It follows, the transaction was hit by
provisions of said Act.
12) The appellants Counsel contended that the
pleadings in a suit for specific performance warrant
readiness and willingness which is conspicuously
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absent. The land was Inam land. There was
restriction for alienation to the small pieces of
land. As the plaintiff has come with a case of
execution of agreement to sell by defendant and his
brother, Gangaram, non impleadment of legal heirs of
Gangaram or bringing them on record in the suit for
specific performance foreclose such claim and contract
comes to an end.
13) In a suit seeking for specific performance
requires the plaintiff to plead readiness and
willingness to perform his part of contract. The
pleading
of
to this context is reflected in paragraph
the plaint, which reads, “the plaintiff has asked
2
the defendant for executing sale deed of the property;
the defendant has avoided and did not execute sale
deed. ” Presently there is no legal impediment to the
transaction. Hence the plaintiff has issued notice to
the defendant and his brother on 30.11.1979 to execute
the sale deed. The defendant has given a false reply
dt.17.12.1979 and refused to execute sale deed. Hence
the suit seeking directions against the defendant to
execute the sale deed.” This part of the pleading
naturally, needs a support in the deposition of the
plaintiff Vasudeo. He says that he has received
possession of the property on the next day after
execution of sale deed. There is possession receipt
executed by defendant. He has issued a registered
notice to the defendant and thereby asked defendant to
execute the sale deed in respect of the suit land in
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his favour.
14) The Apex Court in Syed Dastgir’s case ( 1999)
6 SCC 337) observed – “Unless a statute specifically
requires a plea to be in any particular form, it can
be in any form. No specific phraseology or language
is required to take such a plea. The language in
Section 16(c) of the Specific Relief Act, 1963 does
not require any specific phraseology but only that the
plaintiff must aver that he has performed or has
always been and is willing to perform his part of the
contract. so the compliance of ‘readiness and
willingness’ has to be in spirit and substance and not
in letter and form.”
15) The first appellate Court did not formulate
the point relating to the plaintiff was ready and
willing to perform his part of the contract. However,
observations in paragraph no.17 in the judgment of the
first appellate Court are as under:
” Admittedly, the plaintiff though has not
(in) specific words pleaded in the plaint
about his readiness and willingness to perform
his part, his conduct regarding the payment of
Rs.500/- on 10.3.1977 vide Exh.89, so also
request to defendant from time to time to do
the needful to execute registered sale deed ismore than sufficient to come to the conclusion
that the plaintiff was ever ready and willing
to perform the contract on his part. ”
16) Section 16(c) of Specific Relief Act requires
in a suit for specific performance who fails to aver
and prove that he has performed or has always been
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ready and willing to perform the essential terms of
the contract which are to be performed by him or other
than terms of performance of which has been prevented
or waived by the defendants. Section 16 creates a bar
for enforcement of a contract, if such averments are
missing.
17) Explanation-II indicates as under:
” The plaintiff must aver performance of or
readiness and willingness to perform the
contract according to its proved
construction.”
This essential part which is requirement under the
statute, is
absolutely missing in the plaint as
portrayed hereinbefore. The observation of the first
appellate Court quoted are more leaning to be non
application of mind to the factual position and are
sketchy in its nature. It has taken divorce from the
evidence of plaintiff quoted above. On this ground
plaintiff fails.
18) In fact, the plaintiff himself had become
incapable of performing or he has violated the
essential terms of contract by keeping the original
application with him which was required to be moved to
the competent revenue authorities. It was probably
because the plaintiff was showered with parting of
possession by the defendant and his brother Gangaram,
the plaintiff was more keen to enjoy the crops in
agricultural field than to make payment of his part of
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his obligation or to make the application to the
competent authority. It is clear that the plaintiff
has violated the essential terms of his obligation in
contravention of the contract and he has varied the
same.
19) The witness for Agreement of Sale, P.W.2
-Raghunath, is a cousin of the defenadnt. He
confirmed his signature to the agreement of sale,
Exh.83. However, he denied as to contents of the
document, as according to him, it was already written.
He had not read the same; he simply signed the
document.
cannot tell
He states in the examination-in-chief,
as to what was decided on that day
he
in
between the plaintiff and defendant. The other
witness – Jagannath Girdhar Sonawane has denied about
the transaction. He stated that the amount of
Rs.500/- was taken by the defendant. He was present
and signed on the document dated 3.10.2007 (Exh.89).
In the cross-examination, he has accepted that receipt
was already written before he reached there. He has
signed on the receipt as directed by plaintiff and
defendant. The receipt was in connection of giving
and taking money. He has no personal knowledge of the
transaction, which was between plaintiff and
defendant. These two witnesses are not properly
appreciated by both the Courts. On the other hand,
the Courts have erroneously held that these two
witnesses have proved either the agreement of sale or
Receipt, Exh.89.
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20) The other crucial aspect in the matter is, the
Agreement of Sale (Exhibit-83) was by defendant and
his brother – Gangaram. The notice, Exh.85, was
issued to both the brothers and the reply Exh.86 was
by both the brothers. However possession receipt
Exh.98 dt.28.2.1974 is by Hari Kashiram Sonavane
(Appellante/defendant) The 7/12 extract at Exh.84, is
not read in proper tune by the learned Judge. The
entries in the revenue record Ex.94 till 1978-1979 was
in the name of the defendant and his brother. They
had raised society loan for crops. The learned Judge
time of its
should have considered these aspects.
agreement was Survey
The land at the
No.331/1 and in
Consolidation, it was given as Block No.609, still the
ownership of the defendant and his brother Gangaram
remained with other two brothers. In a suit for
specific performance of contract, where the agreement
was by two brothers, the notice seeking performance of
the contract was issued to two brothers, the contract
was joint and indivisible with the defendant and his
brother, there was no demarcation of the property, the
death of Gangaram and not impleading his legal heirs
to the suit or not seeking performance of contract
from them vitiates the transaction. The right to sue
does not survive to the plaintiff due to death of one
of the executant. The suit in the form it was filed
was not maintainable as Gangaram or for that purpose
his legal heirs were necessary parties to the suit.
The pleading that it was defendant, who has agreed to
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sell two acres and 4 gunthas agricultural land from
gut No. 609, is contrary to the agreement of sale.
21) The plaintiff and his witness, PW 4 have
stated that at the time of agreement of sale, the
amount of Rs.8,000/- was given to the defendant as
earnest. However, the Agreement of Sale, Exh.83,
indicated that the amount was paid at house. I do not
wish to give much emphasis on this anomaly.
22) The possession of the suit land was allegedly
given on 28.2.1974 by Hari, which is not legally
proved.
as
This document, in fact, cannot be acted upon
the signature of Hari is on the obverse when there
was sufficient space for his signature at the front
page where the contents of the document are written.
23) Exhibit-89 – Bharana Pawati dated 10.03.1977
is purported to be signed by Gangaram Kashiram
(deceased brother) and at left side on revenue ticket
of 10 paisa, it bears signature of Hari Kashiram
Sonavane and Santosh Hari Sonawane. Namdeo Hari
Sonawane has endorsed receipt of Rs.495/- in his
presence. This payment receipt is not free from
doubt. A impression is generated that either first
signatures were obtained and later the contents/script
was written, or they were obtained on blank sheet.
24) In the reply dated 17.12.1979, Exh.86 to the
notice dated 30.11.1989 (Exh.85) by Gangaram Kashiram
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and Hari Kashiram (Appellant), they have disputed the
transaction to be of absolute sale and pointed that
the agricultural property was more than worth Rs.
20,000/- and the Receipt dated 10.3.1977 for Rs.500/-
was nothing, but interest. It was pointed that for
the years 1974-1975 to 1978-1979, the plaintiff has
enjoyed fruits in the agricultural land and
consequently, the loan is discharged and the defendant
owe nothing. Even it was settled in presence of four
responsible villagers, consequent thereupon, it was
the defendants who have sowed the field and have taken
the agricultural income. Thus, the notice under reply
makes
the things clear.
entries, Exh.94.
This is supported by revenue
25) Thus, findings recorded by both the Courts do
not flow in consonance to the record and legal
position. The substantial questions are answered in
affirmative. Hence, order :
ORDER
(i) The appeal is allowed. The judgment and
Decree in Regular Civil Suit No.12/1980 passed by
Civil Judge, Junior Division, Yawal, dated 31.08.1985,
and Regular Civil Appeal No.308/1985, of the District
Court, Jalgaon, decided on 20.08.1992, is set aside.
(ii) The Respondent to restore possession of suit
property within three months. No costs.
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25) In view of disposal of the appeal, CA
No.153/1993 becomes infructuous, it is disposed of.
( K.U.CHANDIWAL, J.)
J )
(agp:u/bdv/sa5.93)
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