Popat Krishna Pawar and Ors. Vs Balkrishna Namdeo Patil and Ors.

¶1

	IN THE HIGH COURT	OF JU	DICATURE AT	BOMBAY
	APPELLATE			SIDE
	SECOND APPEAL	NO.	894 OF	2004
Popat Krish	na Pawar & ors. V/s	... Appel	lants
Balkrishna	Namdeo Patil &	ors.	...	Respondents
Miss	Gauri Godse	for	the	appellants.
Shri	G. S. G	odbole	for the	respondents.
		CORAM DATED	: P.V. KAKADE, J. : 14TH DEC., 2004
P.C.:
1.	This is an appeal	preferred	by the	appellants
defendants	against the judgment	and	order passed	by the
Addl.	District Judge,	Solapur,	dated	8.8.2002
dismissing	the appeal and	confirming	the judgment	and
order	passed by the Civil	Judge,	Jr. Divn.,	Karmala,
dated	22.8.1996 decreeing	the	plaintiff’s suit	for
specific	performance of the	contract	with direction	to
the	appellants to execute t	he sale	deed of the	suit
property	in favour of the	plaintiff	within one m	onth on

¶2

depositing the balance conideration and necessary

¶3

charges of execution of sale deed.

¶4

2

¶5

2. I have heard the learned counsel for both parties.

¶6

Perused the record.

¶7

3. The	plaintiff	filed	the suit for	specific
performance o	f the	contract	against the defendants	with
submission that	defendant	No.1	Popat, the son	of
defendant No.2,	was	absolute	owner of the suit	land
being Gat No.10	4 admeasu	ring	6 Hectares 11-R situated	at
village Pande,	Tal.	Karmala,	Dist. Solapur by	virtue
of partition betw	een himself	and	his father. He	entered
into an agreemen	t to sel	l the	said land to the	plaintiff
for consideration	of Rs.	25,000/-	and signed and	executed
one unregistered	agreement	on	stamp paper of Rs.5/-	in
his favour	on 19.9.1982	. H	e endorsed the receipt	of
Rs.3000/- paid	by the	plaintif	f from 23.7.1982 time	to
time and Rs.2000/-	on the	date	of agreement. As pe	r the
terms of agr	eement, the	remain	ing amount was to be	paid
within three	years i.e.	on	or before 18.7.1985 and	a
registered sale	deed was	to	be executed and p	ossession
was to be	delivered	to the	plaintiff. It was	also
agreed that the	encumbrance	s of	society was to be	repaid
by the defenda	nt No.1 til	l then	so as to make the	land
free from	encumbrances.		On 17.5.1983, defendant	No.1
Popat again	executed	another	unregistered agreement	on
stamp paper	of Rs.5/-	in	favour of the	plaintiff
acknowledging	earlier rec	eipt	of Rs.7000/- in	addition

¶8

3

¶9

to Rs.30	00/- actually	paid	to him	on	17.5.19	83. O	n that
day	actual poss	ession	of the l	and	was	delivered i	n part
performance	of	the	contract and	the	other	terms	and
conditions	of the	agr	eement date	d	19.9.1982	were	carried
forward.	On	23.11.	1983, defenda	nt	No.1	again	executed
another	agreement	on	stamp paper	of	Rs.5/-	wherein	the
receipt	of Rs.	3000/-	after 17.5.1	983	and	the rece	ipt of
Rs.2000/-	dated	2	6.11.1983 aga	inst	the	transaction	is
admitted.	Ther	efore,	the plaintiff	has	paid	total	sum
of R	s.20,000/-	against	the agre	ement	of s	ale out	of
Rs.25,000/-	and that	he	is willing	to	pay	the bala	nce of
Rs.5000/-	as per	the	order of	the	Court.	The	defendant
has	refused to	execute	the sale	deed	in	spite of	notice

¶10

given by the plaintiff. Hence the suit came to be

¶11

filed.

¶12

4.	As	there was	disp	ute bet	ween	defen	dant	Nos.	1 &	2
in	respect	of	the	lands	and	mut	ations	effected	in	the
record	of	rights,	the	mutation	No.		2801	of	1971	was
challenged	in	R.C.S.		No.	11	of	1985	filed	by	the
defendant		No.1 ag	ainst	defend	ant	No.2	in	Civil	Court	at
Karmala.		Therefore,	the	name	of	d	efendant	No.2	is	added

¶13

in the suit. The plaintiff in the alternative has

¶14

claimed refund of Rs.2000/- alongwith the damages.

¶15

4

¶16

5.	Defendan	t No.2 filed written statement which	was
adopted	by	defendant No.1, wherein they have denied	the
agreement	of	sale between the parties. It is	further
denied	that	possession of the suit property was	handed
over	to the	plaintiff by defendant No.1. It is	further
denied	that	there was partition between defendant	Nos.
1 and	2	in respect of their ancestral lands,	by
registered	partn	ership deed. According to them,	the
suit	land	was allotted to the share of defendant	No.2
and	he alo	ne was in possession and enjoyment of	the
same,	but th	e mutation No. 2802 was wrongly	and
mistakenly	recor	ded in the record of rights.	Taking
disadvantag	e of	this fact, the defendant No.1 signed	and
executed	agreem	ent in favour of the plaintiff	being
aware	of	which the defendant No.2 has made	an
application	to	the Tahsildar and got the	record
corrected	by M.E	. No. 3741. It was alleged that	since
the	defendant	No.1 has no title to the suit land,	the
plaintiff	cannot	get any legal right or interest	by
virtue	of the	agreement. Therefore, the suit was	sought
to	be	dismissed. The learned Trial Judge adj	udicated
the	dispute	on merits and came to the conclusion	that
the	evidence	on record was sufficient to show that	the
plaintiff	had	proved that defendant executed	an
agreement	of	sale dated 19.9.1982 at which foot	the
amount	of	Rs.2000/- was paid and it was acknowledged	by

¶17

5

¶18

the	defendant	No.1 as	well as No.2. However, it	was
held	that	plaintiff	had proved subsequent ag	reement
between	the	parties and	the fact that the possession	was
delivered	on	17.5.1983	to the plaintiff. It was	held
that	defendant	No.2	was held to be the owner of	the
property	during	his life	time only. It was further	held
that	the	plaintiff w	as and is ready and willing	to
perform	his	part of	the contract and, therefore, he	was
entitled	f	or specific	performance of the said c	ontract.
Conseque	ntly,	the decree	came to be passed in favour	of
the	plaintiff.	Being	aggrieved by the said judgment	and
order,	appeal	was	carried to the District	Court,
Solapur.		The Addl.	District Judge heard the appeal	on
merits	and	confirmed	the findings recorded by	the
learned	Trial	Judge	taking into account the	entire

¶19

evidence on record and dismissed the appeal. Hence the

¶20

present appeal.

¶21

6.	At	the ou	ts	et, it	may b	e note	d	that the	close
perusal	of	the enti	re	dispute	on	recor	d	shows that	there
is	absolutely	no	su	bstantial	question	of		law involved	in
this	appeal	and		all the	issues	invol	ved	are issues	of
fact	which	are	pr	operly ap	preciated	by	b	oth the	Courts
below	and	have		recorded	the r	easons	th	erefor. In	fact,
in	the	appeal m	em	o itself,	all	the	ques	tions which	are
said	to	be raised		are see	n to	be	the	issues relating	to

¶22

6

¶23

the	facts and	pertaining	to	the appreciation	of	actual
evidence.	However	Miss	Gauri	Godse, learned	counsel	for
the	appellant	filed the	additi	onal grounds	which	are
sought	to be	added	as	additional	grounds	for

¶24

consideration, hence leave to amend the appeal memo was granted.

¶25

The	additional ground sought to be	raised is	to	the
effect	that, whether both the Cou	rts below	have	taken
into	consideration that, assuming	without a	dmitting	that
the com	promise recorded in Regular Civil	Suit No.	11	of
1985	created or declared a future	right,	title	and
interest	in favour of appellant No.1	will not	be a	valid
transfer	for want of registration as	provided	under	Sec.
17(1)(b)	of the Registration Act,	1908 and	con	sequent
execution	of agreement in favour of	respondent	No.1	will
not	be enforceable. In this regard	it must	be	noted
that it	is an admitted positio	n that	there	was
compromise	decree between defendant Nos	. 1 and	2	on
which	basis the suit came to be	disposed of	whereby	the
rights	of the parties were affected	and defe	ndant	No.1
has	acted on the basis of said co	mpromise.	It was	also
submitted	that such compromise would	not be	the	valid
transfer	for want of registration	and, the	refore,	the
consequent	acts of the parties	also would	not	be
specifically	enforceable. In support	of t	his sub	mission

¶26

7

¶27

the learned counsel sought support from the	Ape	x	Court
ruling in the case of Bhoop Singh v/s Ra	m Sin	gh	Major,
reported in (1995) 5 S.C.C. 709, which	relates	to	the
issue of Registration contemplated under	Sec.		17(2)
(vi) of the Registration Act. However, if	we	peruse	the
judgment, para 18 is the ratio of the	judgment		wherein
it is laid down that compromise decree,	if	bonafide	, in
the sense that the compromise is not a	device	to	obviate
payment of stamp duty and frustrate the	law	relatin	g to
registration, would not require registration.		In	a
converse situation, it would re	quire	reg	istration.
Therefore, in the present case,	obviou	sly,	the
compromise was not entered into to obvia	te pa	yment	of
stamp duty or to frustrate the law	rel	ating	to
registration because the issue involved	is		quite
different and compromise was entered into	fo	r a	ltogether
different reasons. Under the circumstances,		even	by
virtue of ratio laid down by the Supreme	Court	in	the
said case, said compromise cannot be said	to	be	the
compulsory registrable document. The	learned		counsel
for the appellant thereafter sought to	raise		various
other grounds, however, in my considere	d	view,	the
question of registration as well as o	ther	allied	issues
sought to be raised today are being raised	for	the	first
time while arguing the second appeal which	were	also	not
part of the original appeal memo and,	therefor	e, I	have

¶28

8

¶29

no hesitation to hold on merits that those cannot be

¶30

said to be the substantial questions of law.

¶31

7.	In the case of Kondiba Dagadu Kadam v/s	Savitribai
Sopan	Gujar & ors., reported in A.I.R. 1999 SC	2213,
the	Apex Court has observed that, the	conditions
mentioned	in Sec. 100 of the C.P.C. must be	strictly
fulfilled	before a second appeal can be maintained	and
no	Court has the power to add to or enlarge	those
grounds.	The second appeal cannot be decided on	merely
equitable	grounds. The concurrent findings of	facts
howsoever	erroneous cannot be disturbed by the	High
Court	in exercise of the powers under this section.	It
is	not within the domain of the High Court	to
investigate	the grounds on which the findings	were
arrived	at by the last Court of fact, being the	first
appellate	Court. In a case where from a given set	of
circumstan	ces, two inferences are possible, one drawn	by
the	lower appellate Court, is binding on the High	Court
in	second appeal. Adopting any other approach is	not
permissible	. This being the position, perusal of	the
judgments	of both the Courts below, for which	evidence
is	available on record, definitely shows that both	the
Courts	below have properly appreciated the evidence	on

¶32

record and have recorded the findings accordingly in

¶33

just, proper and correct manner.

¶34

9

¶35

In the result, I hold that the appeal deserves to be dismissed and stands dismissed in limine with no order as to costs. Consequently, the civil application also stands dismissed with no order as to costs. In view of the request made on behalf of the appellant, the effects of dismissal of this appeal stand stayed for eight weeks.

¶36

10

¶37

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶38

APPELLATE SIDE

¶39

SECOND APPEAL NO. 894 OF 2004

¶40

Popat Krishna Pawar & ors.

¶41

... Appellants