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2022 Supreme(Bom) 739
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRITHVIRAJ K. CHAVAN, J.
Dattatraya Bajirao Kale – Petitioner
Vs.
Dinkar Pandurang Pawar (D) through LRs. – Respondent
Second Appeal No. 728 of 2016
Decided On : 21-07-2022
Advocate Appeared:
For the Petitioner: Abhijit P. Kulkarni.
For the Respondent: Himanshu Kode.
The importance of readiness and willingness in a suit for specific performance, the significance of notice in determining the status of a purchaser, and the calculation of the limitation period.
Headnote:
Specific Performance - Contract - Maharashtra Land Revenue Code - Limitation Act - [FACT OF THE CASE] The plaintiff filed a suit for specific performance of contract and declaration that a sale deed executed by defendants in favor of the appellant was not binding upon him. The plaintiff contended that he had an agreement of sale with the deceased owner of the property and was always ready and willing to perform his part of the contract. The defendants sold the property to the appellant during the pendency of the suit. The trial court decreed the suit, and the first appellate court upheld the decision. The appellant approached the court with a second appeal. [FINDING OF THE COURT] The court found that the plaintiff was ready and willing to perform his part of the contract and that the appellant was not a bona fide purchaser without notice. The court also held that the suit was not barred by limitation. [ISSUES] The issues involved the readiness and willingness of the plaintiff to perform the contract, the status of the appellant as a bona fide purchaser, and the applicability of the limitation period. [RATIO DECIDENDI] The court emphasized the importance of readiness and willingness in a suit for specific performance, the significance of notice in determining the status of a purchaser, and the calculation of the limitation period. [FINAL DECISION] The second appeal was dismissed, and the parties were directed to bear their respective costs.
JUDGMENT :
PRITHVIRAJ K. CHAVAN, J.
1. Feeling aggrieved with the concurrent findings of facts by the trial as well as the First Appellate Court, appellant/original defendant No. 5 has approached this Court by preferring a second appeal amongst following facts and grounds.
2. Respondent No. 1 - Dinkar Pandurang Pawar was the original plaintiff. After his death, his legal heirs - respondents No. [1A] to 1[G] and respondents No. 2 to 5 have been brought on record as his legal representatives, who have prosecuted the suit before the Courts below.
3. Regular Civil Suit No. 218 of 1991 was filed by the original plaintiff for specific performance of contract and declaration to the effect that a sale deed executed by defendants No. 1 to 4 in favour of appellant herein/defendant No. 5 dated 1st March, 1999 was not bound upon him in respect of Gat No. 88, Gat No. 224 and Gat No. 213 and Gat No. 77 situate at Village Jainakwadi, Baramati (for short "suit property"). There was a registered agreement of sale between deceased Nivrutti Krishna Mane and the plaintiff qua the suit property on 3rd May, 1974. Nivrutti Mane agreed to sell the suit property to the plaintiff for a consideration of Rs.3250/- and had accepted Rs.2000/- towards earnest money. It was agreed between the parties that the sale deed in respect of the suit property would be executed as and when deceased Nivruti would obtain permission from the competent authority to sell the suit property, meaning thereby, time was not the essence of contract. It is the contention of the plaintiff that on 3rd May, 1974 itself deceased Nivrutti Mane had delivered possession of the suit property by executing possession receipt.
4. Defendant No. 1 - Smt. Tulsabai is the widow of Nivrutti Mane whereas defendants No. 2 to 4 are his married daughters. Deceased Nivrutti Mane, during his lifetime, was ready and willing to perform his part of contract, in the sense, he was ready and willing to execute the sale deed. However, the sale deed could not be executed despite repeated requests by the plaintiff and also in view of very close relations between two families. After the death of deceased Nivrutti Mane, his legal representatives were ready and willing to execute the sale deed, but even by saying that unless sale deed is executed, soul of deceased Nivrutti would not rest in peace, they could not remain faithful to their promise.
5. Plaintiff had issued a notice to the defendants on 21st May, 1991, thereby asking them to execute a sale deed in respect of the suit property and to inform a specific date as to when they would attend the office of the Sub Registrar. The defendants refused to accept the notice and, therefore, the plaintiff was constrained to file a suit for specific performance.
6. During pendency of the suit, defendants No. 1 to 4 had sold the suit property in favour of defendant No. 5 on 1st March, 1999 despite publication of a notice in the local newspaper "Ransing" by the plaintiff on 4th February, 1999. The plaintiff contends that the said transaction and the sale deed entered into by the legal representatives of deceased Nivrutti in favour of defendant No. 5 is bogus, sham and not binding upon him. According to him, he has been in possession of the suit property ever since deceased Nivrutti had executed an agreement of sale and a possession receipt dated 3rd May, 1974. The plaintiff had placed on record documentary evidence in the form of public documents as per section 31 of the Maharashtra Land Revenue Code which comprises order of the Sub Divisional Officer in final Appeal No. 221 of 2001 dated 28th January, 2003. From the said document, it has been substantiated that name of the plaintiff has been recorded in the record of rights as well in 7/12 extract qua the suit property. Admittedly, decision of S.D.O has not been challenged by the appellant-defendant No. 5. It has attained finality.
7. Defendants No. 1 to 4 i.e legal representatives of deceased Nivrutti Mane, however, took a ple
