Malan Pandurang Lande v. Ramesh Dayaram Shitole and Ors

Harish IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.825 OF 2022 WITH INTERIM APPLICATION NO.30108 OF 2022 IN SECOND APPEAL NO.825 OF 2022 Malan Pandurang Lande ...Appellant/ Applicant Versus Ramesh Dayaram Shitole & Ors. …Respondent Mr. N. G. Rokade i/b D. K. Bhosle, for the Appellant/Applicant Mr. Vivek V. Salunke, for the Respondents. CORAM :

MADHAV J. JAMDAR, J. DATE : 1st MARCH, 2023

P.C.:

¶1Heard Mr. Rokade, learned counsel appearing for the Appellant and Mr. Salunke, learned counsel appearing for the Respondent Nos. 1 and 2.

¶2The Appellant is the Original Defendant No. 3 i.e. subsequent purchaser. The Respondent Nos.1 and 2 are the Original Plaintiff who agreed to purchase the suit land from the Respondent Nos. 2 and 3 and fled suit for the specifc performance. The Respondent Nos. 3 and 4 are the Original Defendant Nos. 1 and 2 i.e. Vendors. The Defendant No. 4 is the son of the Defendant Nos. 1 and 2 and the Defendant No. 3 i.e. subsequent purchaser is the daughter of the Defendant No. 4.

¶3The Appellant by way of the present Second Appeal is challenging the legality and validity of the impugned Judgment and Decree dated 13th August, 2004 passed in Special Civil Suit No. 553 of 1995 by learned 6th Civil Judge, Senior Division, Pune and the Judgment and Decree dated 6th October, 2022 passed by the Learned District Judge-6, Pune in Regular Civil Appeal No. 758 of 2012. The said Appeal was fled by the Original Defendant No. 3 i.e. the present Appellant.

¶4Mr. Rokade, learned counsel appearing for the Appellant who is the Original Defendant No. 3 submitted that, following substantial questions of law are involved in the present Second Appeal. i] Whether the courts could have granted the deree which has not been sought in the plaint? ii] Whether the Decree of specifc performance regarding the suit property could have been granted in the absence of partition of suit property by metes and bounds?

¶5Before considering the substantial questions of law raised by Mr. Rokade, learned counsel appearing for the Appellant, it is necessary to set out certain admitted factual position.

¶6Admittedly, the Defendant Nos. 1 and 2 i.e. the present Respondent Nos. 3 and 4 i.e. Baburao Bala Teli and Parvatibai Baburao Teli executed the registered agreement of sale dated 14th September, 1994 in favour of the Plaintiffs i.e. the present Respondent Nos. 1 and 2 with respect to the half share of the property bearing Gat No. 300 situate at Vadgaon Rasai, Tal. Shirur, Dist. Pune. Total area of Gat No. 300 is 4H 78R as well as additional area of Potkharaba of 35 Guntha. In the registered agreement, it is specifcally mentioned that 1/2 share of the Defendant No. 1 and 2 is 2H and 39R as well as Potkharaba area of 17.5R. Therefore, total land which has been purchased is 2H

56.5R.

¶7It is also admitted position that, Defendant Nos. 1 and 2 have sold the suit property by executing registered sale deed dated 28th February, 1995 in favour of Defendant No. 3. Admittedly, Defendant No. 4 is the son of Defendant Nos. 1 and 2 and Defendant No. 3 is the daughter of Defendant No. 4 i.e. grand daughter of Defendant Nos. 1 and 2. It is also admitted position that, the Regular Civil Suit No. 70 of 1992 was fled by Defendant Nos. 1 and 2 against Defendant No. 4 seeking the partition and the said suit was decreed on 30th September, 1993 by which half share was allotted in favour of Defendant Nos. 1 and 2 and half share was allotted to Defendant No. 4. It is also admitted position that Darkhast for fnal decree proceeding are pending and the precept has been sent to the collector for partition of the property.

¶8In these circumstances, the suit was fled by the present Respondent Nos. 1 and 2 seeking specifc performance and for a declaration that the said sale deed dated 28th February, 1995 executed by Defendant Nos. 3 and 4 in favour of the Appellant i.e. Defendant No. 3 be declared as illegal and seeking possession from Defendant Nos. 1 and 2 after the same is received by Defendant Nos. 1 and 2.

¶9It is signifcant to note that, all the Defendants fled common written statement and stand is taken that, the agreement of sale was executed without the consent of the Defendant No. 4 and when the land was not yet partitioned. Further contention has been raised that, the Defendant No. 1 and 2 had sold the land which has come to their share by registered sale deed dated 28th September, 1995 in favour of Defendant No. 3 and Defendant No. 3 is a bonafde purchaser without notice of the suit agreement. Both the Courts have recorded the fnding that the Defendant No. 3 is not a bonafde purchaser. The Appellate Court has observed that the onus is always on the transferee to prove that the transferee had no notice of prior agreement and that can only be discharged by leading cogent evidence. In this particular case, Defendant No. 3 who is the transferee has failed to enter into the witness box to prove her case of bonafde purchase. She failed to prove that, she has purchased the property without having knowledge of the suit agreement. The learned First Appellate Court observed that non examination of the Defendant No. 3 has the effect of drawing an inference against her as provided under Section 114 (g) of the Evidence Act, 1872. The First Appellate Court has also observed that Defendant No. 3 is the daughter of Defendant No. 4 and grand daughter of Defendant No. 1 and 2. All the Defendants are the members of same family and they have fled a joint written statement and therefore, it could not be believed that Defendant No. 3 is the bonafde purchaser.

¶10The present Second Appeal has been fled by the Defendant No. 3 who has not been held as a bonafde purchaser. Therefore, in fact once fnding is arrived at by both the Courts that the Defendant No. 3 is not a bonafde purchaser and when it has not been shown that the said fnding is not a fnding recorded on the basis of evidence on record, there is no substance in the Second Appeal fled by her.

¶11Mr. Rokade, learned counsel appearing for the Appellant has submitted that the decree which has been passed by the learned Trial Court and which has been confrmed by the learned First Appellate Court by modifying the same to certain extent is beyond the prayers. To appreciate the said contention, it is signifcant to note certain aspects :-

(i) The Plaintiffs have inter alia sought the following prayer : v-;krhy izfroknh uacj 1@2 ;kauh R;kauk nkok tfeuhpk dCtk dksVkZdMwu feGkysiklwu 30 fnolkps vkr oknhapsdMwu :-181200@&?ksowu R;k tfeuhph [kjsnh[kr oknhl d:u ns.ksc|y vkns'k Ogkok-izfroknh uacj 1@2 ;kauh rls u dsY;kl rs dksVkZekQZr oknhl d:u feG.ksc|ygh ;kap cjkscj vkns'k Ogkok-

(ii). The learned Trial Court has decreed the suit inter alia in the following manner :- "2. Defendant nos. 1 to 3 shall execute sale deed of suit property Gat No. 300, situated at Mouje Vadgaon Rasai, Tal. Shirur, Dist. Pune in favour of plaintiffs, within a month from the date of decree.

¶3If they fails to execute sale deed, plaintiffs can get execute sale deed through the Court at the cost of defendant No. 1.

4.

Plaintiffs are directed to deposit remaining consideration of Rs. 1,81,200/- in the court."

(iii) The First Appellate Court has although dismissed the Appeal however, modifed the decree passed by the learned Trial Court in the following manner :- "3. Defendants no. 1 to 3 shall execute sale deed of half eastern portion of land block no. 300 situated at village Vadgaon Rasai, Tal. Shirur, Dist. Pune in favour of the plaintiffs."

¶12Mr. Rokade, learned counsel appearing for the Appellant has relied on the decision in the matter of Bachhaj Nahar Vs. Nilima Mandal & Anr. 1. In the said Judgment, it has been held that, a case not specifcally pleaded can be considered by the Court only where the pleadings in substance, though not in specifc terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. On the basis of said decision of the Supreme Court it is the contention of Mr. Rokade that the prayer as sought in the plaint is that, the Defendant Nos. 1 and 2 be directed to execute the sale deed within 30 days and after receiving possession and be directed to hand over the same to the Plaintiff. However, the decree passed by the learned Trial Court directing that, Defendant Nos. 1 and 2 shall execute the sale deed of suit property in favour of the Plaintiffs within one month period from the date of decree and the learned Appellate Court has directed the execution of the sale deed of half eastern portion of land bearing Gat No. 300 in favour of the Plaintiff which are beyond the prayers. According to learned counsel of the Appellant, this is impossible as the relief granted is not sought in

(2008) 17 SCC 491. the plaint. However, it is to be noted that, this has been done in view of the contention raised by all the Defendants in the joint written statement which they have fled on 15th February, 2002 in the Trial Court. In the said written statement in paragraph No. 4 it has been inter alia contended by all the Defendants as follows. ^^4½ nkok dye 3 e/khy etdwj laiw.kZi.ks [kksVk vlwu ;k izfroknhauk dcwy ukgh-izfroknh uacj 1] 2 o 4 ps Eg.k.ks dh] nkok&tfeuhps okVi >kysys ulrkauk o izfroknh uacj 4 ph laerh ulrkauk oknhauh d:u ?ksrysy lkBs[kr csdk;ns'khj vkgs-izfroknh uacj 1 o 2 ;kauk dkSVaqfcd xjt vlyh rjh izfroknh uacj 4 ps laerhfouk dsysys lkBs[kr iw.kZRo%dMs tk.kkjs uOgrs-Eg.kwup izfroknh uacj 4 us okVi d:u laerh ns.;kps Bjfoys rsOgk izfroknh uacj 1 o 2 ;kauh oknhauk dGfoys dh] ^^rqeps lkBs[kr djkj iwrZrsdjhrk izfroknh uacj 4 laerh nsr ukgh-R;keqGs rqEgh rqeph folkjkph jDde :i;s 30]000@& ijr ?kÅu lkBs[kr jÌ d:u |k-** oknhauh R;kl izfrlkn fnyk ukgh-R;keqGs oknhapk izLrqrpk nkok djkj iwrZrsdjhrk csdk;ns'khj vkgs-v'kk ifjfLFkrhr izfroknh uacj 3 us jks[k jôe :i;s 2]31]101@& ¼:i;s nksu yk[k ,drhl gtkj ,d'ks ,d½ ;k jdesl izfroknh uacj 1 o 2 ps fg'';kl o okVikr vkysyh iwosZdMhy 2gs-39vkj- $ [kjkck 0¾17-5 vkj- [kjsnh ?ks.;kps Bjowu rk-20@2@1995 jksth jftLVj [kjsnh[kr d:u ?ksrys o tfeuhpk rkckgh R;kp fno'kh ?ksryk-rlsp lnj [kjsnh[krkl izfroknh uacj 4 us laerh fnyh vkgs-R;keqGs izfroknh uacj 3 gh nkok tfeuhph cktkjHkkps fdaerhus izkekf.kd [kjsnhnkj (Bonafde Purchaser) >kyh vkgs-**

(Emphasis added)

¶13Thus, all the Defendants by fling common written statement have come up with the case that 2H 39R + Potkharaba 17.5R of the eastern side suit property has been allotted in favour of Defendant Nos. 1 and 2 and the same has been sold by Defendant No. 1 and 2 to Defendant No. 3. Therefore, the decree that has been passed by the learned Trial Court which has been modifed by the learned First Appellate Court is in consonance with the stand which has been taken by the Defendants in the common written statement fled by all the Defendants. Therefore, there is no substance in the substantial question of law raised by the Appellants that the decree has been passed which has not been sought in the plaint.

¶14The present suit is for specifc performance and therefore, it is settled legal position that, the Courts dealing with the suit for specifc performance are exercising equity jurisdiction and therefore, no illegality or irregularity can be found in the decree which has been passed by the learned Trial Court as modifed by the learned First Appellate Court.

¶15As far as second substantial question of law raised by the Appellant that the suit properties are not yet partitional and therefore, the decree cannot be passed. It is signifcant to note that, in fact, it is the contention of all the Defendants which has been raised in the common written statement that, 2H 39R +17.5R of Potkharaba out of the said Gat No. 300 has been allotted in favour of Defendant Nos. 1 and 2 in the partition and the same has been sold by registered sale deed in favour of Defendant No. 3. Therefore, there is no substance in the second substantial question of law raised by the Appellant.

¶16The fact that, all the defendants fled common written statement and that the Defendant No. 4 is the son of the Defendant Nos. 1 and 2 and the Defendant No. 3 is the daughter of the Defendant No. 4, clearly shows that the Defendant No. 3 is not the bonafde purchaser.

¶17As there is no substantial question of law, the Second Appeal is dismissed with cost. In view of dismissal of the Second Appeal nothing survives in the Interim Application and the same is also dismissed.

(MADHAV J. JAMDAR, J.)