Bombay High Court
Gavatya S/O Dashrath Nanhe (Dead Thr ... vs Khawaja Garib Nawaz Coop Housing ... on 30 January, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.422 OF 2016
APPELLANTS: Gavatya S/o Dashrath Nanhe, (Dead
(Ori. Deft. No.1) through Legal Representatives)
1. Smt. Parvati wd/o Gawtya Nanhe,
Aged 71 years, Occ: Household, R/o
232, Zingabai Takli, Gond Mohalla,
Nagpur-440 030.
2. Manohar S/o Gawtya Nanhe, Aged
51 years, Occ.: Fisherman, R/o Kuhi
Road, Bhugaon, District - Nagpur.
3. Suryabhan S/o Gawtya Nanhe, Aged
46 years, Occ.: Agriculturist, R/o
Kuhi Road, Bhugaon, District -
Nagpur.
4. Dilip S/o Gawtya Nanhe, Aged 39
years, Occ: R/o 932, Zingabai Takli,
Gond Mohalla, Nagpur - 440 030.
5. Smt. Sakubai w/o Shivaji Mohankar,
Aged 55 years, Occ: Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur-440 030.
6. Bebitai w/o Godruji Mandre, Aged
53 years, Occ.: Household, R/o
Dhangapur, Umred, District _
Nagpur.
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7. Manda w/o Mangal Nagre, Aged 49
years, Occ.: Household, R/o Plot
No.119, Guruwari Bazar, Ward No.2
New Koradi,
8. Smt. Vimala w/o Namdeo Mohankar,
Aged 44 years Occ.: Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur - 440 030.
9. Vijay Mohankar (Dead).
10. Harish S/o Vijay Mohankar, Aged 17
years, Occ.: Student,
11. Chetan s/o Vijay Mohankar, Aged 15
years, Occ.: Student,
Nos.10 and 11 being minor through
Guardian Dilip Nanhe, (Appellant
No.4) R/o Zingabai Takli, Nagpur.
-VERSUS-
RESPONDENTS: 1. Khawaja Garib Nawaz Co-op.
(Ori. Plff.) Housing Society, Through its
Presidenty Haji Mohammed Sharif
S/o Mohammed Shafi, Aged about
56 years, Occ.: Business, R/o
Anantnagar, Nagpur - 440 013.
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(Ori.Deft.No.2) 2. Dilip S/o Shivdas Gwalbansi, Aged
42 years, Occ.: Aglriculturist, R/o
Makardhokada, Gittikhadan, Katol
Road, Nagpur.
Shri K. H. Deshpande, Senior Advocate with Shri V. U.
Waghmare Advocate for the appellant.
Shri A. G. Gharote, Advocate for the respondent No.1.
Shri S. G. Shukla, Advocate for the respondent No.2.
AND
SECOND APPEAL NO.474 OF 2016
APPELLANT: Shri Dilip S/o Shivdas Gwalbansi,
(Ori. Deft.No.2) Aged 48 yrs, Occ: Agriculturist, R/o
Makardhokada, Katol Road, Nagpur.
-VERSUS-
RESPONDENTS: 1. Khawaja Garib Nawaz Co-operative
(Ori. Plff) Housing Society, Through its
President Haji Mohammed Sharif
S/o Mohammed Shafi, Aged about
56 years, Occ.: business, R/o
Anantnagar, Nagpur - 440 013.
(Ori.Deft.No.1) 2. Shri Gavatya S/o Dashrath Nanhe
(Dead through his legal
representatives)
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2(a) Smt. Parvati Wd/o Gavatya Nanhe,
Aged 71 years, Occ: Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur.
2(b) Shri Manohar S/o Gavatya Nanhe,
Aged 51 years, Occ: Fisherman, Ward
No.1, Bazar Chowk, Bhugaon, Tahsil
Kampthee, Dist. Nagpur-441 104.
2(c) Shri Suryabhan S/o Gavatya Nanhe,
Aged 46 years, Occu: Agricuolturist,
R/o Kuhi Road, Bhugaon, Dist.-
Nagpur.
2(d) Shri Dilip S/o Gavatya Nanhe, Aged
39 years, Occ: Business, R/o 932,
Zingabai Takli, Gond Mohalla,
Nagpur.
2(e) Smt. Sakubai w/o Shivaji Mohankar,
Aged 55 years, Occ:Household, R/o
932, Zingabai Takli, Gond Mohalla,
Nagpur.
2(f) Smt. Bebibai W/o Godruji Mandre,
Aged 53 year, Occ:Household, R/o
Dhangapur, Umred Dist. Nagpur.
2(g) Manda W/o Mangal Nagre, Aged 49
years, Occ: Household, R/o Plot
No.119, Guruwari Bazar, Ward No.2,
New Koradi, Nagpur.
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2(h) Smt. Vimala W/o Namdeo
Mohankar, Aged 44 years, Occ:
Household, R/o 932, Zingabai Takli,
Gond Mohalla, Nagpur.
2(i) Shri Vijay Mohankar, Aged 44 years,
Occ: Service, (dead through legal
representatives 2(j) and 2(k).
2(j) Shri Harish S/o Vijay Mohankar,
Aged 17 years, Occ:Student,
2(k) Shri Chetan S/o Vijay Mohankar,
Aged 15 years, Occ: Student,
Nos.2(i) & 2(k) R/o - 932, Zingabai
Takli, Gond Mohalla, Nagpur.
Respondent No.2(j) to 2(k) through
their legal guardian Shri Dilip
Gavatya Nanhe.
Shri S. G. Shukla, Advocate for the appellant.
Shri A. G. Gharote, Advocate for the respondent No.1.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 30, 2018.
ORAL JUDGMENT :
1. Both these appeals can be conveniently decided by this common judgment.
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2. Second Appeal No.422/2016 arises in the following backdrop:
The respondent No.1 herein is the original plaintiff which had filed Special Civil Suit No.717/2002 seeking specific performance of the agreement dated 15-1-1994. According to the plaintiff, the original defendant no.1 was the owner of about four acres of land from field No.82/4. The plaintiff - Society had purchased two acres of that land by virtue of two sale deeds dated 13-10-1989 and 30-8-1990. After purchasing two acres in the aforesaid manner, the defendant No.1 agreed to sell the remaining two acres of land in favour of the plaintiff - Society for a consideration of Rs.2,00,000/-. On 15-1-1994 as well as prior thereto the entire consideration of Rs.2,00,000/- stood paid to the defendant No.1 who then executed an agreement of sale styled as "Kabuliyatnama". According to the plaintiff - Society, as the registration of sale deeds was not permissible it was agreed that the sale deed would be executed after the ban in that regard was removed. The possession was delivered to the plaintiff - Society on the said date after which the Society prepared layouts by demarcating the plots. ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 7/19 According to the plaintiff, it was always ready to have the sale deed executed but the defendant No.1 avoided to do so. After issuing a notice on 23-3-2003, the suit came to be filed. Specific performance of agreement dated 15-1-1994 seeking execution of the sale deed was sought. During pendency of the suit, the defendant No.1 sold the suit property on 30-5- 2005 in favour of the defendant No.2. Said defendant was thus added as party and a declaration was sought that the sale deed executed in his favour was null and void.
3. In the written statement filed by the defendant No.1, the execution of earlier sale deeds dated 13-10-1989 and 30-8-1990 was admitted. It was however denied that there was any agreement with the plaintiff - Society to sell the remaining two acres of land in favour of the said Society. It was pleaded that the agreement was not registered and was also insufficiently stamped. It was further denied that the plaintiff - Society was put in possession. The thumb impressions of the defendant No.1 were taken on various receipts and the defendant No.1 was not aware about the nature of the transaction. In so far as the written statement of the defendant No.2 is concerned, he pleaded that he was a ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 8/19 bonafide purchaser of the suit property for value without notice.
4. After the parties led evidence, the trial Court recorded a finding that the plaintiff - Society had entered into an agreement with the defendant No.1 for purchasing the suit property. It was further held that the plaintiff was ready and willing to perform its part of the agreement and that the suit was filed within limitation. By judgment dated 24-11-2009 the trial Court decreed the suit. The first appellate Court after re-appreciating the evidence on record confirmed the findings of the trial Court and dismissed the appeal. The original defendant No.1 has thus filed Second Appeal No.422/2016.
5. In so far as the Second Appeal No.474/2016 is concerned, the same has been filed by the defendant No.2 who claims to have purchased the suit property from the defendant No.1 on 30-5-2005. As stated above, he was added as defendant No.2 in Special Civil Suit No.717/2003 which thereafter came to be decreed. The defendant No.2 filed a separate appeal being Regular Civil Appeal ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 9/19 No.682/2012. The first appellate Court by its judgment dated 20-4-2016 dismissed that appeal and confirmed the decree passed by the trial Court.
6. Shri K. H. Deshpande, learned Senior Counsel for the appellant - legal heirs of the defendant No.1 in support of Second Appeal No.422/2016 made the following submissions:
(a) The alleged document dated 15-1-1994 styled as "Kabuliyatnama" could not be the basis of a decree for specific performance. As per this document, the defendant No.1 agreed to sell two acres of land for a consideration of Rs.2,00,000/- It was stated that the possession of the said area of two acres agreed to be sold was shown to be handed over to the plaintiff - Society. If this document is stated to be an agreement of sale then the document was ambiguous as no time frame was stipulated for having the sale deed executed. In absence of any such time being fixed for executing the sale deed, the plaintiff - Society ought to have taken necessary steps in that regard within reasonable time.
Though the agreement is dated 15-1-1994, the notice seeking ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 10/19 specific performance was first issued by the plaintiff -Society in the year 2003 after which the suit came to be filed. Though it was stated in the said agreement that the was a ban to execute the sale deed there was no such evidence brought on record. If the said document is treated as a sale deed as the entire consideration had been received and possession was also stated to be delivered, that document was inadmissible in evidence as it was not registered. In absence of registration of the said document no title could pass in favour of the plaintiff - Society. The construction of this document, therefore, gave rise to a substantial question of law.
(b) That the conduct of the plaintiff - Society dis- entitled it to any relief. The defendant No.1 was uneducated and he was not aware about the contents of that agreement. The total consideration of Rs.2,00,000/- was much less than the market value of the land in question which was evident from the earlier sale deeds dated 13-10-1989 and 30-8-1990 wherein the said land though shown to be valued at Rs.1,20,000/- had been sold for a consideration of Rs.40,000/-. There was total inaction on the part of the ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 11/19 plaintiff - Society in seeking specific performance as the suit was filed after almost nine years from the date of the agreement. Even the alleged receipts relied upon by the plaintiff - Society were of a doubtful nature. It was thus submitted that both the Courts having failed to consider these aspects of the matter committed an error in exercising discretion under Section 20 of the Specific Relief Act, 1963 in favour of the plaintiff - Society while decreeing the suit.
7. Shri S. G. Shukla, learned Counsel for the appellant in Second Appeal No.474/2016 - defendant No.2 made the following submissions:
(a) The defendant No.2 was a bonafide purchaser of the suit property and he had no knowledge of the suit filed by the plaintiff - Society nor was there any notice of lis pendens issued by the plaintiff - Society. According to him, the defendant No.1 was competent to execute the sale deed in favour of the defendant No.2 as it was his ancestral property.
It was submitted that the plaintiff - Society was never ready and willing to have the agreement dated 15-1-1994 completed and filed the civil suit after almost nine years. The ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 12/19 plaintiff - Society executed various sale deeds even of the property purchased by the defendant No.2 and it did not produce proper records before the trial court. In support of his submissions, the learned Counsel placed reliance on the decisions in Hansa V. Gandhi Vs. Deep Shankar Roy and others (2013) 12 SCC 776, Rangammal Vs. Kuppuswami and another (2011) 12 SCC 220, Manjunath Anandappa Urf. Shivappa Hansi Vs. Tammanasa & Ors. 2003 (3) ALL MR 303, Om Prakash Berlia and another v. Unit Trust of India and others 1983 Mh.L.J. 339, Lourdu Mari David and others v Louis Chinnaya Arogiaswamy and others (1996) 5 SCC 589 and Parashram S/o Kashiram Sakhare vs. Vatsalabai w/o Harshay Sharma and another 2003 (5) Mh.L.J. 405.
8. Shri A. G. Gharote, learned Counsel for the respondent No.1 - original plaintiff supported the decree for specific performance. He made the following submissions:
(a) The "Kabuliyatnama" dated 15-1-1994 was in fact an agreement to sell two acres of land that remained with the defendant No.1. Though possession of the said two acres of land was handed over to the plaintiff - Society, it was not ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 13/19 necessary to have the agreement dated 15-1-1994 registered in view of the fact that the provisions of Section 17(1)(a) of the Registration Act, 1908 did not mandate such registration.
He submitted that during pendency of the suit, the said agreement was impounded as per order dated 1-7-2006 after which the requisite stamp duty was paid on 13-4-2007.
(b) The agreement dated 15-1-1994 (Exhibit-71) has been held to be duly proved. The plaintiff - Society had examined the scribe as well as one of the witnesses to the said document. On the other hand the defendant No.1 did not examine his witness namely Baban Nanhe who was related to the defendant No.1. The entire payment of consideration was proved and the receipts in that regard below Exhibit-70 were placed on record. There was no ambiguity in that document and therefore, both the Courts rightly directed specific performance of that agreement.
(c) The conduct of the defendant No.1 was relevant inasmuch as the earlier sale deeds at Exhibits-68 and 69 had not been challenged by him. Though sufficient opportunity was granted to the defendant no.1 to lead evidence, the same ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 14/19 was not done. The defendant No.1 was sought to be examined by appointing a Court Commissioner but the defendant No.1 did not have himself examined and therefore, failed to discharge the burden that was cast on him. The possession of the suit property was handed over to the Society which was duly proved. Moreover, by virtue of provisions of Section 43 of the Transfer of Property Act, 1882 even if it was assumed that some sale deeds were executed by the plaintiff - Society on the strength of agreement dated 15-1-1994, the same would not cast a doubt on the title of the Society.
(d) The defendant No.2 was not a bonafide purchaser of the suit property. His transaction was hit by lis pendens as the lis was filed on 10-9-2003 and the sale deed was executed in favour of the defendant No.2 on 30-5-2005. Moreover, there was no requirement of registration of lis pendens in the Vidarbha Region of the State of Maharashtra. He placed reliance on the decisions in Murlidhar S/o Bhima Vaidya & another vs. Nababbi Yousufkhan and others 2000(1) BCR 670, Dagadu Bapu Shinde v. Vasant Shankar Nimbalkar AIR 1988 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 15/19 Bombay 22 and Mst. Suganik v. Rameshwar Das and anr. AIR 2006 SC 2172. He, therefore, submitted that there was no reason to interfere with the decree passed by the trial Court and maintained by the first appellate Court.
9. I have heard the learned Counsel for the parties at length and I have also gone through the relevant documents on record while giving due consideration to their submissions. Perusal of the document at Exhibit-71 indicates that the defendant No.1 had sold two acres of land from field Survey No.82/04 by two earlier sale deeds in favour of the plaintiff - Society. The entire area of four acres of land was agreed to be sold for a total consideration of Rs.4,00,000/-. After referring to the earlier sale deeds at Exhibits 68 and 69, it was stated that the remaining area of two acres was also agreed to be sold to the plaintiff - Society for a consideration of Rs.2,00,000/-The entire consideration of Rs.4,00,000/- was received by the defendant No.1 by 15-1-1994. The possession of remaining two acres was also handed over to the plaintiff - Society. The payment of the entire consideration is sought to be proved by various receipts at Exhibits 70/1 to 70/11. These receipts indicate that when ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 16/19 the agreement dated 15-1-1994 was executed, the entire consideration of Rs.2,00,000/- was duly paid. The scribe of the agreement - Dinkar Kadu as well as one of the witnesses to the agreement Samiullah Khan were examined by the plaintiff - Society. The other witness though related to the defendant No.1 was not examined. This agreement was subsequently impounded by the orders of the trial Court. The provisions of Section 17(1)(a) of the Registration Act, 1908 requiring an agreement of such nature to be registered were amended on 24-9-2001 which is much later than the date when the agreement was executed. Hence, the finding recorded by both the Courts that the execution of the agreement at Exhibit-71 has been held to be proved does not require any interference. The defendant No.1 has duly proved the agreement and the law laid down in Rangammal, Om Prakash Berlia and Parashram Sakhare has been complied with.
10. As regards readiness and willingness on the part of the plaintiff - Society to have the sale deed executed, it must be noted that the entire consideration of Rs.2,00,000/- payable under the agreement dated 15-1-1994 was duly paid ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 17/19 to the defendant No.1 who had handed over possession of the suit property to the society. Nothing further was required to be done except having the sale deed executed. The aspect of readiness and willingness would have to be taken into consideration in the light of these factors. If the entire transaction was completed except for having the sale deed executed, then it cannot be said that the plaintiffs were not ready and willing to perform their part of the contract inasmuch as there was nothing left to be performed. The notice for having the sale deed executed came to be issued by the plaintiff - Society on 23-8-2003 after which the suit was filed. In the facts of the present case, I do not find this aspect of the defendant No.1 being called upon to execute the sale deed in the year 2003 of such nature to refuse relief to the plaintiff - Society. The suit has been filed within limitation. Hence, the ratio of the decision in Manjunath Hansi (supra) does not apply to the facts of the case.
11. In so far as the claim of the defendant No.2 of being a bonafide purchaser is concerned, it is found that the sale deed in his favour was executed much later on 30-5- 2005 while the suit was filed on 10-9-2003. In the light of ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:30 ::: SA422.16nSA474.16.odt 18/19 provisions of Section 52 of the Transfer of Property Act, 1882 the sale deed executed in favour of the defendant No.2 would, therefore, be subject to the outcome of the pending proceedings filed at the instance of the plaintiff - Society. Moreover, as held in Murlidhar Bhima Vaidya and another, it was not necessary to have the lis registered in so far as the area of Vidarbha is concerned. There is no evidence brought on record by the defendant No.2 to indicate the nature of enquiries made by him before having the sale deed executed in his favour. As per documents at Exhibits 52/6 and 52/7 the name of the plaintiff - Society was already entered in the revenue records much prior to the same being purchased by the defendant No.2. Hence, the finding recorded that the defendant No.2 was not a bonafide purchaser of the suit property does not call for any interference. The decisions in Hansa V. Gandhi and Lourdu Mari David (supra) do not assist the case of the defendant No.2.
12. I find that both the Courts have taken into consideration the entire evidence on record and have appreciated the same in the proper perspective. The findings recorded are thus supported by the material on record. I, ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:31 ::: SA422.16nSA474.16.odt 19/19 therefore, do not find that the appeals give rise to any substantial question of law. Both the appeals, therefore, stand dismissed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:41:31 :::