Dismissed

Sadashiv Devba Patil v. Keshav Bhau Kamble (Mahar)

Bombay HC15 Dec 2005SA/407/2005

Case brief

AI extract

What is this about?

This Second Appeal challenged the dismissal of a suit for specific performance filed beyond the limitation period. The Court held that no discretionary power exists to grant specific performance when the suit is barred by time. It further noted that claiming title via adverse possession is inconsistent with filing for specific performance based on the seller's ownership.

What did the court decide?

The Second Appeal filed by the heirs of the deceased plaintiff was dismissed with no order as to costs.

Sadashiv Devba Patil Vs Keshav Bhau Kamble (Mahar) — Specific Performance | Bombay HC (2005)

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:1:

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 407 OF 2005

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Sadashiv Devba Patil, since deceased by his heirs 1) Smt.Parvati Sadashiv Patil & Ors. ...Appellants

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Versus

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Keshav Bhau Kamble(Mahar)

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...Respondent

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Shri A.Y.Sakhare, Sr.Advocate with Shri Dilip Taur i/b Smt Varsha Palav for the Appellants.

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CORAM : ANOOP V.MOHTA, J.

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DATE : 15TH DECEMBER, 2005

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P.C.

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This is a Second Appeal, filed by the Appellant

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- Plai	ntiff,	wh	ereby	challenge	has been made	to	the
judgment	and		decree	passed	by the Jt.Civil		Judge,
Junior	Divisio	n,		Kolhapur on	08-10-1996 in		Reg.Civil
Suit No	.926	of		1992 whereby	the Suit filed	by	the
Appellant-Plai	ntiff		for	specific	performance		was
dismissed	and		the	IInd	Additional District		Judge,
Kolhapur	(App	ellate		Court) by	its judgment and		order

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dated 02-05-2003 in Reg.Civil Appeal No.53 of 1997

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confirmed the same.

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2.	Based	on the agr	eement dated	08-09-19	73, the
Suit	was	filed	for	spec	ific	performan	ce with
alternative	prayer	for	adver	se	possession.		Considering
the	material	on	record,	even	though,	the	Defendant
failed	to lead	any	evidence,	both	the	Courts	were right

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:2: the suit on the ground

in dismissing

limitation.

The Suit was admittedly filed on 09-10-1992, which was

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beyond period of limitation.

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Such suit for specific performance beyond a

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period		of	three	years	, in	no	way	suppo	rts the case	of
the		Plaintiff		to	pray	for	specific	p	erformance.	The
law	of	spec	ific	perfo	rmance	is	very	cle	ar, even if,	the
Suit		is	filed	wit	hin	three	years,	but,	at a	delayed
stage		the	C	ourt	has	discret	ionary	power	or may	grant
decree		for	sp	ecific	per	formance	.	In	the present	case,

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the suit itself was filed beyond period of three years.

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The Appellate Court has given finding that the

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plaintiff	made	some	pay	ment	in	considerat	ion	of	the
sale	agreement.	Ass	umed	for		a mo	ment	that	the
reasonings	are	in	favo	ur	of	the		plaintiff,	still
considering	the	suit	as	well	as	the	issues	of	specific

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performance, no discretionary power in any way can be

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exercised in favour of the Plaintiff.

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The plaintiff’s case of possession, even if

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accepted,		still	merely on	the	foundation	of	possession
of	the	suit	premises	alongwith	agreement	that	itself

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also cannot be the reason to grant the specific

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performance beyond the period of limitation.

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:3:

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The learned Counsel appearing for the Appellant

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strongly		further contended that he	had ra	ised	specific
plea	of	adverse possession, which	was not	at	all
considere	d by	the Trial Court. The	Appellate	Cou	rt has
definitely	c	onsidered that aspect of	adverse		possession
and	held	that the Appellant - Plai	ntiff failed	to	prove
title	to	the property by adverse	possessio	n.	The
moment		party claims a specific	performance	of	contract
based	on	agreement of sale, and in	the same	sui	t if
raised	plea	of adverse possession, in	my view	that	plea
itself	need	to be rejected, on simpl	e ground	that	while
entering	into	agreement a party accept	other p	arty	as a
seller	mean	s owner of the property	and then	based	on
the	said	foundation at later stage	so cal	led	purchaser
in	no	way can claim the title of	the property	on	the
basis	of	adverse possession. The	declaration	by	the
Plaintiff		himself that the Defendant	being	owner	while
entering	i	nto agreement for the	property in		question

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has himself destroyed the case of plaintiff of adverse

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possession.

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In this background, I see no reason to interfere with the concurrent findings given by the Courts below.

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Therefore, the Second Appeal is dismissed. No order as

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to costs.

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(ANOOP V.MOHTA, J.)

Sadashiv Devba Patil v. Keshav Bhau Kamble (Mahar)

Case brief

What is this about?

What did the court decide?

Sadashiv Devba Patil v. Keshav Bhau Kamble (Mahar)

Case brief

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