Second Appeal

If you could write the facts/judgment of first appellate court  then reply will be more easy that what substantial question of law may be made in your second appeal.

R.C.S. No 61/00 Exh (J)

PRESENTED ON   : 11-01-91

REGISTERED ON  : 11-01-91

DECIDED ON     : 26-06-06

DURATION  : Y-15-M-5-D-15

IN  THE COURT OF THE CIVIL JUDGE JUNIOUR DIVISION

KARJAT , DISTRICT RAIGAD.

      [PRESIDED OVER BY SHRI I.M. SHAIKH]

                    REGULAR CIVIL SUIT NO 61/2000

                    EXHIBIT NO 112/A

[1] Shri Sadashiv Krishnaji Musale,

    Age 59 years, Occ: Agriculturist,

[2] Shri Rajesh Sadashiv Musale,

    Age 29 years, Occ: Agriculturist

    and business dealing in tiles and

    other building material.

                                       PLAINTIFFS

[3] Shri Dinesh Sadashiv Musale,

    Age 25 years, Occ: Agriculturist,

    All R/o: Karjat, Tal. Karjat,

    District Raigad.

          Versus

    Sau Rajani Kisan Harpude,

    Age 43 years, Occ: Household,       DEFENDANT

    R/o: Karjat, Tal. Karjat,

    District Raigad.

CLAIM : SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT

        AND ALTERNATIVELY FOR DAMAGES.

Learned Advocate Shri Lad for the Plaintiffs.

Learned Advocate Shri C.B. Oswal for Defendant.

                   JUDGMENT

           [Delivered on 26-06-2006]

1.        This suit is for specific performance of agreement to sale dated 28-12-1987 and in alternative for damages of Rs 56,956/- and costs of the proceedings.

2.                   Facts in brief of this suit as under;

Defendant is the owner of land bearing S. No. 17 H. no. 1-B situated at village Karjat , Taluka Karjat District Raigad [ herein after for brevity sake property shall be referred to as suit property]. Defendant on 28-12-1987 agreed to sell the suit property to the plaintiffs for Rs 42,000/-. Plaintiffs paid Rs 25,000/- to the defendant by way of earnest amount and remaining amount was to be paid at the time of execution of the sale deed. However , there after prior to the execution of sale deed, defendant was in need of money , therefore plaintiffs paid remaining balance amount and the defendant accordingly passed receipts for the same. The suit property required sell permission from Sub Divisional Officer, Panvel for executing the sale deed. Defendant also gave possession of the suit property on 31-12-1987 and accordingly executed taba pavti in favour of the plaintiffs. Thereafter the sale permission was obtained from the Sub Divisional Officer , Panvel. Plaintiffs were ready and willing to perform their part and requested the defendant to execute the sale deed in their favour. However, defendant on one or the other pretext refused to execute the sale deed, therefore , the plaintiffs issued notice through their Learned Counsel dated 02-01-1991. Despite the receipt of notice , defendant did not comply nor reply the said notice, hence this suit.

3.        In response to the suit summons defendant appeared and filed her Written Statement vide Exh 43 and strongly combated to the contents of the suit and put forth her case as under;

          Suit property was the land under Bombay Tenancy and Agricultural Lands Act, which was purchased by the father of the defendant. After the death of her father , suit property came in possession of the defendant. As the suit property is under Bombay Tenancy and  Agricultural lands Act , therefore , alleged agreement of the plaintiffs without obtaining permission from the Sub Divisional Officer, Panvel is not proper and plaintiffs did not have any right to ask for specific performance of the said agreement. Defendant did not ever execute any sort of agreement as contended by the plaintiffs. Defendant is not the sole owner of the suit property , therefore she does not have any right to alienate the suit property. The defendant did not ever handed over the possession of the suit property to the plaintiffs. The permission as contended by the plaintiffs is not obtained from the Sub Divisional Officer, Panvel. The defendant had obtained some hand loan from the plaintiffs and at that time plaintiffs had obtained her signatures on various documents fraudulently and those documents are used by the plaintiffs in filling this false suit. Suit is filed beyond the limitation period, therefore it is not tenable. The matter was carried upto the Hon’ble High Court and by deceiving Executing Court the plaintiffs had executed the sale deed by appointing Court Commissioner in their favour. Sale deed executed in the Darkhast by the plaintiffs through Court Commissioner is illegal and not binding upon the defendant. Suit property is still in possession of defendant only, therefore suit be dismissed with costs.

4.        On the basis of rival pleadings of parties, my Learned Predecessor framed the following issues vide Exh 55 and I have recorded my findings against each of them for the reasons mentioned hereinafter.

5.        Before adverting to the reasons to my findings it would be profitable to have the background of the case. This suit came to be filed before the Hon’ble Civil Judge Senior Division, Alibag, Raigad in the year 1991. In response to the suit summons defendant appeared, however failed to file her written statement therefore the matter proceeded “ no W.S. hearing’ and suit came to be decreed in favour of the plaintiffs. Against said ex-party decree and application came to be filed before the Hon’ble Civil Judge Senior Division by the defendant which came to be dismissed and against said dismissal order the defendant went in the Hon’ble High Court. In the meantime plaintiffs filed Darkhast i.e. Execution proceedings before the Executing Court and during the pendancy of the matter before the Hon’ble High Court , Executing Court executed the Darkhast in favour of the plaintiffs. In this way , decree of specific performance of the agreement of sale came to be executed by way of sale deed by appointing the Court Commissioner , in favour of plaintiffs. Thereafter the Hon’ble High Court set aside the ex-parte decree and thereafter trial of this case started.

6.        In order to prove their case, plaintiffs have examined the Plaintiff no 12 as PW-1 by filing his affidavit in lieu of examination in chief vide Exh 93 in addition to what he has deposed earlier before the Hon’ble Civil Judge , Senior Division, Alibag, Raigad. Besides this, plaintiffs also placed reliance upon Taba Pavti Exh 25, agreement to sale Exh 28, notice dated 02-01-1991 at Exh 29, 7/12 extract of the suit property at Exh 30, sale permission obtained for execution of sale deed of suit property at Exh 31, receipts at Exh 32 to 38 respectively and lastly agreement to sale dated 12-10-1982 between Aminudddin Pathan and defendant at Exh 96. There after plaintiffs closed their evidence by filing purshis vide Exh 102. On the other hand , defendant filed her affidavit in lieu of Examination in Chief vide Exh 103 and placed reliance on the mutation entry no 556 which is marked at Exh 105. There after defendant also closed her evidence by filing purshis vide Exh 106. Heard Learned Counsel Shri Lad for the plaintiffs and Learned Counsel Shri C.B. Oswal for the defendant.

                   REASONS

7.   AS TO ISSUE NOS 1 TO 6 AND 8 :-

     These issues are clubbed together as they are inter linked with each other and so also to avoid repetition, therefore I thought it wise to club them and decided them together. It is the case of the plaintiffs that defendant agreed to sale the suit property to the plaintiffs by agreement to sale dated 28-12-1987 and plaintiffs paid Rs 25,000/- as earnest money to her and there after paid balance amount of consideration and obtained receipts for the same. Defendant by way of Written Statement denied the aforesaid facts. Now let us see the evidence on record. Pw-1 has categorically stated in his evidence that defendant agreed to sell suit property owned by her and accordingly an agreement to sell came to be executed on 28-12-1987 and plaintiff have parted earnest amount of Rs 25,000/- on 28-12-1987. Defendant in her evidence stated that she did not sign any sort of document nor executed any sort of agreement nor accepted Rs 25,000/- as contended by the plaintiffs. How ever if we perused the cross examination of defendant , one will find that , she has admitted in her cross examination that she along with her husband went to Sub Registrar Office i.e. Kacheri. She further admitted that plaintiffs were also present there and one Mr. Hadap had written the agreement and she signed on that agreement . She was shown agreement to sale i.e. Exh 28 and she has admitted her signature as well as signature of her husband on the agreement to sale at Exh 28. She also admitted in her cross examination that her husband took money from plaintiffs. She further admitted signature of Shantaram Balu Chandan on said agreement. She further admitted her signature on first page of agreement to sale, therefore on the oral evidence of plaintiff’s witness i.e. PW-1 coupled with documentary evidence i.e. Exh 28 agreement to sale So also admissions given by the defendant in her cross examination goes to prove that on 28-12-1987 defendant agreed to sale suit property to plaintiffs and had executed agreement to sale before Sub Registrar and also received amount from the plaintiffs. Therefore , I find that plaintiffs have proved that defendant had agreed to sell suit property to plaintiffs and had obtained earnest money of Rs 25,000/- from them.

8.        It has come in the evidence of PW-1 that it was decided between the plaintiff and defendant that as the property requires prior permission of the Sub Divisional Officer, Panvel before executing the sale deed therefore, that permission is to be obtained by the parties. PW-1 has deposed that application was made to the Sub Divisional Officer , Panvel and statements were recorded by the Sub Divisional Officer, Panvel of plaintiffs as well as defendant and there after Sub Divisional Officer, Panvel issued the sale permission in favour of the parties. Defendant has come with the case that no such permission was granted by the Sub Divisional Officer, Panvel and she did not depose before the Sub Divisional Officer, Panvel. However if we see the documentary evidence i.e. especially Exh 31 i.e. sale permission, one will find that Sub Divisional Officer, Panvel upon making inquiry and recording statements as required under the law, issued the sale permission and it has been filed on record by the plaintiffs. There is no base to the contention made by the defendant in her Written Statement, in this regard. Contention as regards the sale permission by the defendant is in the form of formal denial. On the other hand , plaintiffs had filed sale permission at Exh 31, therefore one can safely arrive at the conclusion on the basis of evidence of PW-1 coupled with the documentary evidence i.e. sale permission Exh 31 that Sub Divisional Officer, Panvel had granted permission for execution of sale deed by the defendant in favour of the plaintiffs. Therefore I come to the conclusion that plaintiffs have proved that Sub Divisional Officer, Panvel had granted permission to the parties to execute the sale deed.

9.        It is the case of plaintiffs that balance amount of Rs 17,000/- of the consideration amount is to be paid at the time of execution of the sale deed. However plaintiffs have come with the case that as the defendant was in need of money, therefore plaintiffs have time and again paid the balance amount of Rs 17,000/- and accordingly defendant acknowledged the same. It has come in the evidence of PW-1 that he had paid Rs 17,000/- i.e. balance amount of consideration to the defendant before execution of sale deed. Plaintiffs have also filed on record the receipts, they are marked as Exh 32 to 38 respectively. If we see the Written Statement one will find that , defendant had flatly denied about the receipt of balance amount of Rs 17,000/- as well as passing of receipts to the plaintiffs. However if we see cross examination of this defendant lady , one will find that she had admitted her signatures on receipts i.e. Exh 32 to 38 respectively. However she has come with the case that she being an illiterate women, the plaintiffs have played the mischief and obtained her signatures on the receipts. However if we see further the cross examination of this defendant , one will find that she had admitted that she taken money from the plaintiffs, however she does not remember when she had taken the money. Therefore from this admission one thing is crystal clear that defendant had taken money from the plaintiffs and now she is refusing or denying the same. Evidence on record of PW-1 coupled with the documentary evidence i.e. Exh 32 to 38 goes to prove that plaintiffs prior to execution of sale deed had given the amount of Rs 17,000/- to the defendant. Defendant had also admitted her signatures on the receipts, therefore now the onus shifted upon the defendant to prove that the receipts bearing her signatures were obtained by the plaintiffs by mischief or fraud played by the plaintiffs except her oral testimony there is nothing on record. Even the defendant had admitted in her cross examination that she did not complain to any Government Officer or to any other person that plaintiffs have obtained her signature fraudulently. She had made a statement in her cross examination that plaintiffs forcibly obtained her signatures on those receipts, however further in her cross examination she has stated that she is making these allegations about the aforesaid taking signatures by the plaintiffs for the first time in court. Therefore , evidence on record is not believable about the aforesaid contention made by the defendant as regards those receipts are concerned. Therefore I hold that plaintiffs have proved that they have paid amount of Rs 17,000/- i.e. balance amount of consideration to the defendant and defendant in turn passed receipts in favour of the plaintiffs.

10.       It is the case of the plaintiffs that after the agreement to sale, the defendant on 31-12-1987 also put the plaintiffs in possession of suit property and since then the plaintiffs are in possession of the suit property. However , defendant denied the said contention. Let us see the evidence in this behalf. PW-1 stated in examination in chief that on 31-12-1987 defendant put the plaintiffs in possession of suit property and also executed taba pavti in their favour. Said taba pavti is at Exh 25. If we see said taba pavti it bears signature of defendant and said taba pavti has been witnessed by Shantaram Chandan and Kisan Harpude. Mr. Kisan Harpude is the husband of the defendant and on the first page of the taba pavti there is signature of defendant. Therefore , I find that as defendant had admitted in her cross examination her signature on the taba pavti at Exh 25 therefore , evidence of plaintiff’s witness coupled with taba pavti at Exh 25 and admissions of defendant goes to prove that on 31-12-1987 the defendant put the plaintiffs in possession of suit property by executing the taba pavti dated 31-12-1987 at Exh 25.

11.       Plaintiffs have contended that they were always ready and willing to perform their part and defendant on one or the other pretext refused to perform her part. It has come in the evidence that plaintiffs have paid Rs 25,000/- on 28-12-1987 and remaining amount of Rs 17,000/- came to be paid prior to execution of sale deed, therefore nothing was remaining to be done on the part of the plaintiffs because entire consideration amount of suit property was paid to the defendant and it was the defendant now to execute the sale deed in favour of the plaintiffs. Moreover , sale permission was also obtained from the Sub Divisional Officer , Panvel therefore nothing was remaining to be done on the part of the plaintiffs. Plaintiffs have requested the defendant to execute the sale deed , however defendant did not execute the same, therefore , present suit came to be filed. If we see the notice dated 02-01-1991 , one will find that it was issued by the Learned Counsel for the Plaintiffs. Said notice is at Exh 29. The acknowledgment is also filed on record by the plaintiffs. However it is not marked as Exhibit but it bears the signature of defendant as well as postal stamp. Therefore one can arrive at a conclusion that notice was served upon the defendant and defendant was called upon to perform her part i.e. to execute the sale deed in favour of the plaintiffs. Therefore considering the evidence on record, I am of the considered view that plaintiffs have proved that they were all the while ready and willing to perform their part of the contract and defendant was not ready to perform her part. Therefore, I find that the plaintiffs proved that defendant had committed breach of contract. Therefore for the foregoing reasons and discussions I hold that plaintiffs have proved issue nos 1-6 therefore I answer those issues in the affirmative. As defendant failed to prove issue no 8 , therefore I answer issue no 8 in the negative.

12.  AS TO ISSUE NO 12

          This issue came to be framed afterwards. It is the contention of the defendant that she is not the only owner of suit property, therefore this issue came to be framed. Defendant deposed in her evidence in lieu of examination in chief that along with her , her sister is also owner of the suit property. She deposed that originally her father was the owner of suit property and after his death, mother of defendant, sister of defendant and defendant became owners by way of inheritance and she relied upon the mutation entry no 556 which is at Exh 105. If we peruse the said mutation entry one will find the names of persons about whom the defendant has deposed. However if we peruse the cross examination of the defendant, one will find that she has admitted in her cross examination that she is in possession of the suit property and she was cultivating the same. She further admitted that before plaintiffs name came to be mutated in the 7/12 extract , 7/12 extract bears her name. She further admitted that after the death of her father, till the plaintiffs purchased suit property , 7/12 extract bears in her name only. She further admitted that no one challenged that 7/12 extract before any competent authority. Therefore it is from the record that after the death of father of defendant, defendant used to cultivate the suit property and she was in actual and physical possession of said suit property. Admission also goes to show that 7/12 extract also bears the name of defendant only, therefore plaintiff might have entered into agreement to sale at Exh 28. Now the defendant came with a case that along with her , her sister is also co owner of suit property. One thing I would like to make it clear over here that , one cannot approbate and reprobate at the same time. That means one can agree to sell the suit property to the plaintiffs by saying that , she is the owner and on the other hand , she cannot say that along with her there are two other owners also. Now defendant is estopped by saying such things. Persons who would be aggrieved would be her sister who as per the defendant is a co owner, but if we see 7/12 extract since long one will not find the name of the defendant’s sister on 7/12 extract. Moreover, one more thing is important in this matter is that besides agreeing to sell the suit property to plaintiffs, defendant also entered into agreement to sale of suit property with Aminuddin Pathan and also with one Mr. Bhoir and she had categorically admitted in her cross examination that she had agreed to sale suit property to Pathan and Bhoir. As far as agreement to sale copy of Aminuddin Pathan is concern, it is filed on record and it is marked as Exh 96. If we see said Exh 96 i.e. agreement to sale , one will find the name of the defendant alone and she is not joined by her sister as she is claiming now. She further admitted in her cross examination that agreement to sale executed by her in the name of one Bhoir also does not have place for her sister, therefore it is crystal clear that since long she was in possession and cultivating the suit property and her name was mutated in revenue record as a owner and she was the sole owner of the suit property. Therefore the contention of the defendant that she is not the sole owner of the suit property is not correct.

13.       In this matter now the Learned Counsel for the defendantShri C. B.Oswal placed reliance upon one authority of our Hon’ble High Court i.e. Parshuram Kathod Gaikar v/s Pandu Mahadu Hard and Anr reported in 1993 Mh.L.J. at page 1570 wherien the case was that “ plaintiff tenant had borrowed sum of Rs 6000/- from the defendant for the purpose of paying purchase price of two pieces of land. Palintiff had executed document in 1981 which purported to be a document of sale in respect of two pieces of land requisite permission was to be asked and tenant had agreed to sell the land  to defendant. In 1991 , notice was served on to the plaintiff-tenant by the defendant stating that as he had been in possession of land for a period of 10 years and had been cultivating the same, the plaintiff should complete the sale and execute the sale deed. The tenant refused to do so and filed the suit for injunction restraining the defendant from obstructing/disturbing the possession and occupation. Learned Trial Court rejected the interim relief holding that there is no case for injunction had been made out. The matter was carried upto the Hon’ble Appellate Court and the Hon’ble Appellate Court set aside the decision of the Learned Trial Court and granted interim relief. The matter was carried to the Hon’ble High Court and in this matter His Lordship of our Bombay High Court while deciding the interim relief discussed as regards Section 43 of Bombay Tenancy and Agricultural Lands Act 1948. His Lordship has held in the said authority that “ in view of section 43 of aforesaid Act, there is total and complete ban on alienation of agricultural lands in question without previous section of the Collector. If we see the whole authority it is as regards interim relief of injunction and for that His Lordship has discussed about Section 43 of B.T & A.L. Act and he held that , prior permission before entering into any agreement is must. However upon going through the authority minutely , I am of the considered view that this authority cannot be applicable to the case in hand because in this matter, already permission was sought by the plaintiffs and defendant by applying to the Sub Divisional Officer, Panvel and recording statements before him. Moreover this suit is filed for specific performance of contract and not for injunction simpliciter. Therefore that authority is not applicable to the case in hand.

14.       Therefore taking into consideration the evidence on record and long standing possession and cultivation of defendant over the suit property so also name of defendant against the suit property in revenue record from her father’s death till it went into the name of plaintiffs, I am of the considered view that the defendant was the sole owner of the suit property and therefore only, plaintiffs have entered into the agreement about 18 to 20 years ago. Now defendant cannot come with such a case of joint ownership. If it was so then, she ought not to have executed agreement to sale with plaintiffs, with Mr. Pathan and so also with Mr Bhoir. Therefore I am of the considered view that defendant failed to prove the aforesaid issue. Therefore I answer the said issue in the negative.

15.       AS TO ISSUE NO 7.

          As far as this issue is concerned , if we see the agreement to sale at Exh 28, one will find there is no stipulation as regards time for execution of sale deed. Therefore one has to rely upon the refusal on the part of the vendor. In the case in hand plaintiffs issued notice but defendant did not comply nor reply and she refused to execute the sale deed, therefore cause of action arose as stated in the suit and therefore I find that issue of limitation has been raised by the defendant for the sake of objection only and there is no merit in it. Therefore , I answer this issue of limitation accordingly i.e. in the negative.

16.       AS TO ISSUE NO 9

          In view of the aforesaid findings I hold that the plaintiffs are entitled for the decree of specific performance of contract in their favour. Now further in this regard I would like to mention over here that Learned Counsel Shri S.B. Oswal for the defendant while arguing also place reliance upon one more authority i.e. Ramesh Kumar V/s Chamanlala and another reported in AIR 2003 Delhi 202. In this authority His Lordship of Hon’ble Delhi High Court held that “ suit was filed for specific performance of agreement to sell and in the alternative recovery of damages in the sum of Rs 6 lakhs was sought. In the mean time plaintiffs received a letter from the postal department and found that along with the defendant there is one more person also who is owner of the suit property. Therefore plaintiff thought that he had been misrepresented by the defendant and therefore he had come with plea. Therefore , his Lordship of the Hon’ble High Court held that , there was misrepresentation on the part of the defendant and plaintiff is not entitled for specific performance of contract. His Lordship held that plaintiff is entitled for the damages and accordingly damages were awarded.’ . However in the case in hand, I find that this authority is not applicable because in this case defendant has come with the case that she is not the sole owner of the property. Facts of aforesaid authority are that plaintiff came to know about the co-ownership as regards the suit property. In the case in hand, plaintiffs have not come with the case of misrepresentation. Therefore I am of the considered view that said authority is not applicable to the case in hand.

17.       Therefore for the foregoing reasons and discussions I hold that plaintiffs are entitled for the decree of specific performance of contract, therefore , I answer the issue in the affirmative.

18.       AS TO ISSUE NO 10

          In view of my findings to the issue no 9 , I am of the considered view that this issue does not survive. Therefore I answer this issue accordingly.

19.       AS TO ISSUE NO 11

          In view of the foregoing reasons and discussions I hold that the suit need to be decreed with costs, hence following Order:- 

              ORDER

1.              Suit is decreed with costs

2.              Defendant do hereby execute the sale deed of the suit property in favour of plaintiffs within the period of two months from the date of this Order. If the defendant failed to do so , plaintiffs shall be at liberty to get sale deed executed on behalf of defendant through the Court at her costs.

3.              Decree be drawn accordingly.

Karjat                    [M.H. Shaikh]

Dated 26/06/2006    Civil Judge, Jr. Div. Karjat

      IN  THE COURT OF THE DISTRICT JUDGE , RAIGAD

     AT ALIBAG

     CIVIL APPEAL NO 170/2006

    Sau Rajani Kisan Harpude,

    Age 43 years, Occ: Household,      APPELLANT      

    R/o: Karjat, Tal. Karjat,     [ORG. DEFENDANT]

    District Raigad.

          Versus

[1] Shri Sadashiv Krishnaji Musale,

    Age 65 years, Occ: Agriculturist,

[2] Shri Rajesh Sadashiv Musale,

    Age 34 years, Occ: Agriculturist

    and business                     RESPONDENTS

                                 [ORG. PLAINTIFFS]

[3] Shri Dinesh Sadashiv Musale,

    Age 31 years, Occ: Agriculturist,

    All R/o: Karjat, Tal. Karjat,

    District Raigad.

Appeal against Judgment and Decree passed by Civil Judge , Junior Division , Karjat in Regular Civil Suit No. 61/00 dated 26-06-2006.

MAY IT PLEASE YOUR HONOUR

1.        That the Respondents – original plaintiffs had filed Regular Civil Suit no. 61/2000 for relief of specific performance in respect of land bearing Survey no. 17/1B of Karjat and alternative for damages.

2.        That the Appellant – Original defendant had filed her Written Statement vide Exh 43 and she had denied the claim of plaintiffs. Further it is alleged by the defendant- appellant that alleged agreement is void under section 43 of Bombay Tenancy and Agricultural Lands Act and she is not exclusive owner of the suit property, but her sister is also having undivided ½ share. The respondent plaintiffs obtained her signature on various documents fraudulently at the time when she had taken loan from the plaintiff. Further suit is barred by limitation and it is also her case that the suit property is in her possession along with her sister. The alleged sale deed executed by the Court Commissioner is also illegal and the suit of plaintiffs after alleged sale deed is not maintainable.

3.        On the basis of rival pleadings , the learned trial judge had framed issues vide Exh 55.

4.        After recording the evidence of both the sides , the learned trial judge was pleased to decree the suit in favour of respondents on 26-06-2006.

5.        Feeling aggrieved by the said Judgement and Decree, the present Appellant begs to prefer this appeal on the following amongst many other grounds :

[a]  That the said Judgment and Decree of the Lower Court is wrong and illegal.

[b]  The lower Court has committed an error of law in decreeing the suit of the plaintiffs.

[c]  The trial Court did not consider the oral and documentary evidence placed on record by the appellant.

[d]  That the finding recorded to all issues are wrong and erroniours and contrary to the evidence on record.

[e]  The lower court ought to have held that suit property is not exclusively owned by the defendant-appellant but her sister is also having undivided ½ share . Further sister of defendant had also filed separate suit and the lower court ought to have decided suit of sister of defendant before deciding this suit. However the learned judge wrongly recorded that defendant is exclusive owner.

[f]  The lower court ought to have dismissed the suit as alleged agreement is void under section 43 of B.T. & A.L. Act.

[g]  The lower court failed to consider that alleged sale permission vide Exh 31 is not legally subsisting and the said permission was obtained by respondent-plaintiffs arbitrarily. Further in view of execution of alleged sale deed by the Court Commissioner , the suit itself is  not maintainable.

[h]  The Learned Civil Judge ought to have held that the alleged agreement is obtained by fraudulent means and there is no previty of contract and the transaction between the plaintiffs and defendant is of loan transaction.

[i]  The lower court further committed an error of law in holding that agreement of sale is legal one, though it is void under section 43 and couple with recitals of possession in the alleged receipt Exh 25.

[j]  The Learned Judge ought to have dismissed the suit in view of Exh 105 i.e. Mutation Entry 556. The Learned trial judge while answering issue no 12 has wrongly held that defendant has voluntarily executed agreement in favour of plaintiffs, but at the sme time the lower court failed to consider that the plaintiffs had obtained her signature in consideration of loan transaction.

[k]  The Learned tria;l court unnecessarily discarded the ruling reported in 1993 Mh. L.J. 1570 and the reason given by the trial court for not accepting the said ratio as , sale permission was already granted but in fact sale permission which is at Exh 31 was not obtained before alleged agreement of sale.

[l]  The Learned trial judge ought to have dismissed the suit on the point of limitation and the finding given to issue no 7 is also noty proper and legal.

[m]  The lower trial court ought to have held that suit property is common property of defendant and her sister.

[n]  That the inferences drawn and conclusions arrived at are wrong and erroneous.

[o]  The Lower court misstated and misconstrued the provisions of law.

[p]  The whole approach of the Lower Court is from wrong angle.

4.        That the Judgment and Decree is dated 26-06-2006. The Appellant has applied for certified copy on 29-06-2006, which was ready and delivered on 10-7-2006 and as such the appeal which is filed today is well within time.

5.        The appeal is valued as per lower court valuation the proper court fee stamp is paid.

6.        It will take considerable time to decide this appeal finally . In the mean time the respondents execute the decree, then appellant will suffer irrepairable loss. Hence till final decision of this appeal , the execution of decree of the lower court is required to be stayed and for that purpose separate application is filed.

7.        It is therefore prayed that the record and proceeding of Regular Civil Suit No. 61/2000be called for from the Civil Judge , J.D. karjat and after hearing the Advocate for the Appellant ,, present appeal be kindly allowed and Judgment and Decree be set aside and suit of the plaintiffs be dismissed with costs.

     Cost of this appeal be awarded from the respondents.

     And for which act of kindness , the appellant , as in duty bound , shall ever pray.

Alibag                       Sd/

Date 24-04-06           Adv for Appellant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO        OF 2008

DISTRICT RAIGAD

SADASHIV KRISHNAJI MUSALE & OTHERS         APPELLANTS

     VERSUS

RAJNI KISAN HARPUDE                   RESPONDENT

                   INDEX

Mumbai                            Rajan Salvi

Dated                        Adv. For Appellants

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO        OF 2008

DISTRICT RAIGAD

SADASHIV KRISHNAJI MUSALE & OTHERS         APPELLANTS

     VERSUS

RAJNI KISAN HARPUDE                   RESPONDENT

                   SYNOPSIS

NOTES ON SUBSTANTIAL QUESTION OF LAW

ACTS TO BE RELIED ON

CITATIONS

                        RAJAN SALVI

                   ADVOCATE FOR APPELLANTS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO        OF 2008

DISTRICT RAIGAD

[1] Shri Sadashiv Krishnaji Musale,

    Age 59 years, Occ: Agriculturist,

[2] Shri Rajesh Sadashiv Musale,

    Age 29 years, Occ: Agriculturist

    and business dealing in tiles and

    other building material.

                                       APPELLANTS

                                  [ORG. RESPONDENT

[3] Shri Dinesh Sadashiv Musale,        PLAINTIFFS]

    Age 25 years, Occ: Agriculturist,

    All R/o: Karjat, Tal. Karjat,

    District Raigad.

          Versus

    Sau Rajani Kisan Harpude,

    Age 43 years, Occ: Household,       RESPONDENT

    R/o: Karjat, Tal. Karjat,       [ORG APPELLANT

    District Raigad.                    DEFENDANT]