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drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.46 OF 2016

Sheshrao s/o Pandhari Ghule

APPELLANT

Age - 80 years, Occ - Agriculture

R/o Ganjur, Taluka - Latur

District - Latur

VERSUS

Yadav s/o Jyotiba Bhosale

RESPONDENT

Age - 68 years, Occ - Agriculture

R/o Ganjur, Taluka - Latur

District - Latur

.......

Mr. V. D. Salunke h/f Mr. S. Y. Patil, Advocate for the appellant

Mr. C. R. Deshpande, Advocate for the respondent

.......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 5

^th OCTOBER, 2016

ORAL JUDGMENT :

1.

Defendant comes up before this court challenging two

concurrent decisions rendered hitherto, one by extra joint civil

judge, senior division, Latur in special civil suit No. 158 of 2006

dated 30^th November, 2011 and the other by District Judge-4,

Latur in Regular Civil Appeal No. 400 of 2012 dated 19^th

September, 2015.

2.

Parties hereto would be referred to by their original status

in the suit, such as, respondent as “plaintiff” and appellant as

“defendant”.

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3.

There is no dispute about the fact that the defendant had

owned and possessed agricultural land admeasuring 1 Hectare,

53 Are from gut No. 13 situated at village Ganjur, Taluka and

District – Latur, which forms subject matter of litigation between

the plaintiff and the defendant.

4.

It is the case of the plaintiff that agreement to sell

between the defendant and him had been executed on 15^th

February, 2005, wherein aforesaid property had been agreed to

be sold to the plaintiff by the defendant for a consideration of Rs.

4,63,000/- and that about Rs. 4,00,000/- had been parted with

by him and paid to the defendant at the time of execution of

agreement to sell. A stamped receipt acknowledging the

payment had also been executed by the defendant on the very

day. Rest of the amount of Rs. 63,000/- was agreed to be paid at

the time of execution of sale deed after obtaining requisite

permission, since the land had been falling in command area of

Manjara Project and as such, permission had been necessitated

and further that the defendant had agreed to obtain such a

permission and thereafter to execute sale deed.

5.

It is further case of the plaintiff that pursuant to the

agreement, since the defendant did not apply for permission

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immediately, he went on persuading him for making application

for permission for quite some time and ultimately, the defendant

had filed application on 5^th April, 2006 with the Collector, Latur

for permission and accordingly, permission had been granted on

3^rd August, 2006. After the requisite permission had been

granted, the plaintiff had requested the defendant to execute

sale deed by accepting balance of consideration amount.

However, the defendant avoided to execute sale deed, entailing

issuance of notice dated 5^th August, 2006 through advocate. Said

notice, though had been served and received by the defendant,

had not been responded to nor compliance sought under the

same had been made. As such, the suit ensued.

6.

The defendant resisted the suit and claimed that suit land

belongs to him. He denied execution of agreement to sell,

receipt of amount and that any consideration in respect of the

transaction had been agreed upon. It is denied that he had ever

represented that permission from District Rehabilitation Officer

would be required for sale of suit land and had applied for

permission on 5^th April, 2006. Defendant's case is that one Vilas

More, who was holding a high post and enjoying clout, had

influenced obtaining permission for plaintiff. The defendant

denied that the plaintiff had been willing to purchase suit land.

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The defendant further denied issuance of notice by the plaintiff.

7.

Defendant's case is that aforesaid Vilas Mor