Allowed

Shaikh Nizam Shaikh Gulab. v. Shaikh Shafi Shaikh Baba and Others.

Bombay HC17 Jul 2009SA/482/1991

Case brief

AI extract

What is this about?

In a second appeal, the High Court of Bombay at Aurangabad held that vendors who sold property for a substantial consideration could not have any interest to pass it on to a subsequent vendee. The plea of fraud was rejected for non-pleading. The previous judgments were set aside and a decree for possession was granted. Property and Partition.

What did the court decide?

The judgments and orders of the Civil Judge and the Additional District Judge were set aside. The suit was decreed with costs. Possession of the property was directed to be handed over to the appellan

Shaikh Nizam Shaikh Gulab. Vs Shaikh Shafi Shaikh Baba and Others. — Partition | Bombay HC (2009)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

¶3

SECOND APPEAL NO.482 OF 1991

¶4

Sk.Nizam s/o Sk. Gulab
Age: 30 Yrs., occu. Agril.
r/o Navgaon, Post Navgaon,
Tq.Paithan, Dist.Aurangabad. .. APPELLANT
(orig.Plaintiff)

¶5

 VERSUS

¶6

1) Sk.Shafi s/o Sk.Baba Age:25 Yrs., occu.Agril.

¶7

2) Bismillabi w/o Sk.Baba, Age: 50 Yrs., occu. Agril.

¶8

3) Ibrahim s/o Walekhan Age:Major, occu.Agril.

¶9

All R/o village Navgaon,
Tq.Paithan, Dist.Aurangabad. .. RESPONDENTS

¶10

(orig.Defendants)

¶11

*****

¶12

Mr.M.D.Joshi, Advocate for Appellant;
Mrs.A.N.Ansari, Adv.for Respondent nos.1 & 2.;
Mr.A.D.Sugdare, Adv. For Respondent No.3.

¶13

CORAM : K.U.CHANDIWAL, J.
DATE : 17th July, 2009.

¶14

ORAL JUDGMENT :

¶15

1) Heard Counsel extensively.

¶16

2)The concurrent findings recorded against

¶17

¶18

the plaintiff is the subject of challenge in the
Second Appeal.

¶19

3)On 29.11.1991, at the time of admitting
the appeal, Grounds nos. (2) to (5) were treated
to be as substantial questions of law between the
parties, which are as under -

¶20

(2)Both the Courts have
failed to see that the title is
already passed in respect of
the suit property to the
appellant/plaintiffby

¶21

registered sale deed executed
by the defendant no.1 and 2 and
there was nothing left or any
interest was left with the
defendants no.1 and 2 to pass
it on to the defendant no.3 and
it should have been held that
the defendant no.3 does not get
any rights or interest.

¶22

(3)Both the courts have
failed to see and particularly
the Additional District Judge
has failed to see the
defendants have set-up a plea
of fraud. The fraud has to be

¶23

¶24

pleadedandnecessary
particulars are to be given in
the pleadings. The defendants
have not given the necessary
particularsoffraudas
required by law in the
pleadings and, therefore, the
plea of fraud should have been
dis-believed.

¶25

(4)TheAdditional
District Judge has failed to
see that the plaintiff had made
an application to amend the
plaint and include the relief
of possession and, therefore,
possession should have been
ordered to be delivered the
plaintiff on the basis of
title.

¶26

(5)TheAdditional
District Judge has failed to
see that some transaction is
admitted by the defendants no.1
and 2 and also the execution of
the sale deed in favour of the
plaintiff and in view of the
evidencetheAdditional
District Judge and the trial

¶27

¶28

Court should have held that the

¶29

title is passed upon the
appellant.”

¶30

4)The plaintiff came with a case of

¶31

purchase of agriculture property from defendant
nos. 1 and 2 by virtue of sale deed dated
27.4.1979 (Exhibit-64), duly registered before

¶32

the Registrar at Paithan. It was in pursuance to
the agreement of sale executed by defendant nos.

¶33

1 and 2, initially in favour of one Mamtabai,
dated 20th July, 1978, which did not yield its
fruits and consequently, sale deed, Exh.64,
referred above came to be executed.

¶34

5)The vendor – Bismillabai did not

¶35

categorically dispute of her executing the sale
deed in favour of Sk.Nizam, the plaintiff, having

¶36

signed by her son Sk.Shafi also. However, she
contended, she had sold a plot at Paithan for Rs.

¶37

1500 to the plaintiff – Shaikh Nizam and a fraud

¶38

is played by Sk.Nizam on her. This submission

¶39

though are indicated in the evidence of Smt.

¶40

Bismillabai, does not find its roots in the
pleadings. The provisions of Order VI Rule 14

¶41

¶42

contemplate,particularsoffraudor

¶43

misrepresentation are prerequisite, and unless it

¶44

is so pleaded, there cannot be and should not be
a finding contrary to the pleading. Mere
submission that there was cheating by the
plaintiff, that by itself is not sufficient to
dislodge registered sale deed at Exh.64 executed

¶45

by defendant nos. 1 and 2 in favour of the
plaintiff on plaintiff’s parting consideration of
Rs.6,500/-.

¶46

6)The finding of the court of first

¶47

instance, and that of the appellate court, that

¶48

the sale-deed, (Exh.64), was unregistered, is
wild surmise and conjecture of both the courts.

¶49

What made them to make such observation is
difficult to digest as the original record rebels
against such finding. Then comes the observation

¶50

of the court of first instance, that the sale
deed (Exh.64), demonstrates inadequate price as
against the agreement of sale, Exh.63 dated 20th
July, 1978. This was obviously without reference

¶51

to what has happened between defendant no.1, 2
and Mamtabai. Mamtabai in categorical terms in

¶52

¶53

her evidence, endorsed that the amount, which she

¶54

has paid as earnest to defendant nos. 1 and 2,

¶55

was received by her from the plaintiff and
naturally it could not have been referred in the
sale deed. The possession even if it was given
to Mamtabai, based on her agreement of sale, Exh.
63, will not be changing colour and complexion of

¶56

the matter for the plaintiff staking the claim to
possession based on sale-deed, Exh.64. The law is
clear, the sale deed is to be considered with
possession. Even if there is no possession of
the plaintiff, under the statutory arrangement,
since he is an absolute owner of the property,
having parted consideration, he is entitled for
its possession.

¶57

7)It was a suit initially for perpetual

¶58

injunction. The evidence indicate, the witnesses

¶59

saw the plaintiff to be in possession. It was in
the midst high-handedness of the defendant and
particularly defendant no.3, the subsequent
purchaser dated 11.1.1980, that the plaintiff

¶60

lost the possession of property. Loosing of
possession, does not dis-entitle the plaintiff’s

¶61

¶62

staking claim for possession and getting the
plaint amended. The amendment carried by the

¶63

plaintiff, unfortunately is not coherently
adhered to by both the courts and they have given
a go-bye to it with no good cause. There are
lack of reasons to indicate what made the courts
not to entertain decree for possession in favour
of the plaintiff.

¶64

8)Taking survey of entire evidence, the

¶65

first Appellate Court was also required to assess
the evidence and fact, which unfortunately is not
effected. It has deflated the rights accrued to
the plaintiff by virtue of the sale deed in his
favour. There was no ownership or interest with
defendant no. 1, 2 to execute subsequent sale-
deed in favour of defendant no.3. Consequently,
the substantial questions of law, as formulated

¶66

herein above, will have to be answered in favour
of the appellant herein.

¶67

ORDER

¶68

(i)The appeal is allowed with costs;

¶69

(ii)The judgment and order in RCS No.

¶70

45/1980 dated 31.08.1985, passed by the learned

¶71

¶72

Civil Judge, Senior Division, Paithan; and the

¶73

Judgment and Order dated 11.3.1991 passed in RCA
No.232/1985 by Additional District Judge,
Aurangabad, is set aside;

¶74

(iii)The suit of the plaintiff is decreed

¶75

with costs;

¶76

(iv)The defendants/respondents to handover
possession of the suit property, land Survey No.

¶77

112, Gat No.220 to the extent of 2 Acres and 28

¶78

Gunthas, situated in village Navgaon, Tq.
Paithan, District Aurangabad, subject of Sale-
deed (Exhibit-64) dated 27..4.1979 within six
months from the order.

¶79

 sd/-
( K.U.CHANDIWAL )
JUDGE

¶80

bdv/sa482.91

¶81

Authentic copy

¶82

(BD VADNERE,PS)

Shaikh Nizam Shaikh Gulab. v. Shaikh Shafi Shaikh Baba and Others.

Case brief

What is this about?

What did the court decide?

Shaikh Nizam Shaikh Gulab. v. Shaikh Shafi Shaikh Baba and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

State of Maharashtra Vs Bapurao Baban Darade

Manager United India Insurance Co.Ltd Parbhani Vs Venubai Deorao Makrand and Ors.

State of Maha Vs Suhas Eknath Salpe Died Lrs and Ors.

Govind Ram Suryawanshi Vs Umesh Madhavrao Kamble and Anr.

Manohar Jayaram Ambar Vs the State of Mah and Ors.

Mohan Mangilal Kabra Vs State of Maha and Ors.