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IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
VIBHA KANKANWADI, J.
Ghanshyam Deoram Gaikwad - Appellant
Versus
Samshon John Gaikwad - Respondent
Second Appeal No. 145 of 2016
Decided On : 10-10-2019
Transfer of Property Act - Section 53A - Trial Court - Evidence and also submissions - Getting sale-deed Challenging concurrent – Illegal and arbitrary - Existence an agreement to sell and a possession owners - Plaintiffs are out of same gut number within limits of It is stated that plaintiffs were in need of money in and they had requested defendant to extend loan amount of Defendant agreed to same however put a condition that plaintiffs should execute a receipt Accordingly defendant obtained their signatures on three blank stamp papers and gave them amount of -. Thereafter in defendant had forcibly obtained possession of suit property - Plaintiffs later on came to know that defendant has misused three blank stamp papers having signatures of plaintiffs and brought into existence an agreement to sell and a possession receipt - Hence they filed suit with above said prayers – Held, defendant has not explained as to why he had not filed suit for specific performance against plaintiffs - Contents of written statement especially later part of would show that defendant contended that by filing suit plaintiffs have in a way refused to perform their part of contract and therefore defendant has expressed that he would file suit for specific performance - In fact he could have filed counter claim in suit itself for specific performance of contract but he did not do that - In his cross-examination specific question was put to him as to whether he has filed suit for specific performance because his cross-examination was taken answer was in negative - It was also asked that since he is in possession he has no intention to lodge any suit for specific performance of contract he has answered it in negative - It appears that there was no dispute on a fact when agreement to sell was executed that prior to execution of sale deed it was necessary for party executing document to bring permission from requisite authority - In Exhibit there are specific recitals to that effect - Plaintiffs had undertaken to bring said permission but further stipulation was also made that if permission is not obtained it could have been got done by defendant by expending on same - In other words it was stated that present defendant would incur expenditure for bringing permission and then a right was given to him to recover amount which he would have spent on bringing said permission - Testimony of defendant is totally silent as to what steps he had taken after a months period from date of execution of agreement to sell - Unless he shows readiness and willingness to perform his part of contract he could not have got protection under Section 53A of Transfer of Property Act - Conduct of defendant is not up to that mark – Therefore from any angle if court consider facts of case then though there is concurrent finding of both Courts below yet it can be said that defendant had failed to prove that his possession over suit land can be protected under Section 53A of transfer of Property Act – Appeal allowed
JUDGMENT :
Vibha Kankanwadi, J.
Present appeal has been filed by original plaintiff No.1 challenging the concurrent Judgment and decree passed in Regular Civil Appeal No.127 of 2012, by learned District Judge-1, Shrirampur Dist. Ahmednagar, dated 27-06-2014, thereby confirming the dismissal of his suit bearing Regular Civil Suit No.14 of 2011, by Joint Civil Judge, Junior Division, Shrirampur, dated 29-10-2012.
2. The present appellant with present respondent No.2 had filed the said suit for declaration that, the documents executed in respect of suit property in 2008 are illegal, null and void, and for recovery of possession of the suit property which was allegedly taken by defendant forcibly from them. They had also claimed for mesne profits. Plaintiffs are the owners of 0 H 42 R land out of Gut No.9 and 0 H 34 R land out of the same gut number within the limits of village Naur Tq. Shrirampur Dist. Ahmednagar. It is stated that, the plaintiffs were in need of money in the year 2008 and they had requested the defendant to extend loan amount of Rs.30,000/-. Defendant agreed to the same, however put a condition that, the plaintiffs should execute a receipt. Accordingly, defendant obtained their signatures on three blank stamp papers and gave them amount of Rs.30,000/-. Thereafter, in the year 2009, the defendant had forcibly obtained possession of the suit property. Plaintiffs later on came to know that, the defendant has misused the three blank stamp papers having signatures of the plaintiffs and brought into existence an agreement to sell and a possession receipt. Hence, they filed suit with the above said prayers.
3. The defendant resisted the claim of the plaintiffs by filing written statement. He denied that, any forged document or documents have been got executed by him. It is admitted that, plaintiffs were in need of financial assistance but he says that they wanted to sell the suit property, and therefore, approached him. The transaction took place and consideration of the suit property was fixed at Rs.1,60,000/-. Agreement to sell was executed on 22-04-2008 by accepting earnest amount of Rs.60,000/-. On the same day possession receipt was executed, he was put in possession of the suit property. Thereafter by another document which was executed after a few days, plaintiff No.2 had obtained amount of Rs.20,000/- from him and executed document to that effect. Now he is in possession of the suit property and has spent huge amount on its development. The plaintiffs have filed false suit in order to grab the property.
4. Taking into consideration the rival contentions, issues came to be framed. Both the parties have led oral as well as documentary evidence. Taking into consideration the evidence on record, the learned Trial Court held that, plaintiffs failed to prove that, they were in need of financial assistant to the extent of Rs.30,000/-, and after it was extended, the defendant has got executed forged and fabricated document of agreement to sell and possession receipt. It is held that, the agreement to sell and possession receipt is not void ab initio or illegal. Plaintiff failed to prove that, defendant forcibly obtained the possession of suit property, hence the suit was dismissed, and as aforesaid the appeal filed by the present appellant was also dismissed. Both these concurrent decrees are under challenge in this second appeal.
5. Heard learned advocate Mr. P.P. Shinde for the appellants and learned advocate Mr. D.R. Adhav for respondent No.1. Respondent No.2 though served, remained absent.
6. It has been argued on behalf of the appellants that, both the Courts below have not considered the evidence properly, so also the law points involved in the matter have not been considered properly. It is not in dispute that, the original plaintiffs were the owners of the suit property. They had specifically come with a case that, their signatures have been obtained on blank papers when they went to defendant for loan. The perusal of
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