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SA480.2021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

2 SECOND APPEAL NO.480 OF 2021

Shaikh Rahim Shaikh Nanhu (Died)

Through LRs

Sk. Ajim Sk. Rahim (Died)

Through LRs

Shaikh Ajij and Others

.. Appellants

Versus

Sitaram Shankar More (Died)

Through LRs

Rakhumanbai and Others

.. Respondents

…

Advocate for Appellants : Mr. Umesh A. Bhadgaonkar

Advocate for Respondent Nos.1A to 1F : Mr. Anant Devakate

…

WITH

CIVIL APPLICATION NO.6603 OF 2020

IN

SECOND APPEAL NO.480 OF 2021

...

CORAM : MANGESH S. PATIL, J.

DATE : 03-01-2022

PER COURT :

Heard the learned Advocates appearing for the

respective sides.

2.

This is a Second Appeal filed by the original defendant

being aggrieved and dissatisfied by the concurrent findings of the two

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SA480.2021

Courts below holding the original plaintiff entitled to claim specific

performance of a contract to sell immovable property i.e. suit

property being a 2-Are portion from land Survey No.33 of village

Kannad.

3.

For the sake of convenience, the parties are hereinafter

referred to as per their status in Regular Civil Suit No.04 of 2001.

4.

Mr. Bhadgaonkar, learned Counsel for the defendant

would submit that the document of which a specific performance is

being claimed was an unregistered sale-deed, which was also

insufficiently stamped. Therefore, both the Courts below have grossly

erred in allowing such document to be read in evidence and further

directing a specific performance. He would refer to the provisions of

the Maharashtra Stamp Act and the Indian Registration Act.

5.

The learned Counsel for the defendant would further

submit that the specific performance was being sought after the lapse

of more than 18 years of the execution of the document. Apart from

the fact that there was a delay in seeking such execution, even such

delay ought to have been considered by the Courts below for

ascertaining the factum of plaintiffs’ readiness and willingness to seek

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SA480.2021

specific performance as is required by Section 16 of the Specific Relief

Act. Both the Courts below have failed to consider this vital aspect

and have reached an erroneous conclusion holding the plaintiff

entitled to claim specific performance.

6.

Learned Advocate Mr. Devakate for the plaintiff would

submit that this being a Second Appeal wherein the defendant is

challenging the concurrent findings of the two Courts below, the

scope for this Court to cause any interference is limited. Unless there

is some perversity demonstrated and the substantial question of law

arising therefrom is found, this Court cannot step in and cause any

interference.

7.

Mr. Devakate would further submit that in fact the

defendant had come with a bold defence denying execution of the

agreement which was duly proved during the course of the evidence.

He would further submit that the document though it was originally

insufficiently stamped, was impounded and the deficit stamp was

paid, regularizing the document. He would further submit that since

the plaintiff was relying upon an unregistered sale-deed for claiming

specific performance, it is not hit by the proviso to Section 49 of the

Registration Act.

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SA480.2021

8.

He would further submit that though there was a delay

in seeking specific performance, the delay did not go to the root of

the litigation since there is no evidence regarding any earlier refusal

by the defendant to give specific performance and the period of

limitation had begun to run only from the date he replied to the

notice issued by the plaintiff demanding specific performance.

9.

Mr. Devakate would, lastly, submi