Parvatibai Maruti Patil and Others. Vs Krishna Daji Patil and Others.

sa426-sa21

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ssp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.426 OF 1988

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1 Maruti Krishna Patil
(since deceased by his heirs & L.Rs)
A Parvatibai Maruti Patil & Ors. ...Appellants
vs.
1 Daji Sakharam Patil
(since decased by heirs & L.Rs.)
1A Krishna Daji Patil& Ors.
2 Bhavanji Sakharam Patil
(since deceased by heirs & L.Rs)
2A Smt.Jijabai Bhavanji Patil
2B Gopal Bhavanji Patil
2C Govind Bhavanji Patil
2D Santram Bhavanji Patil
2E Anand Bhavanji Patil
2F Hindurao Bhavanjii Patil
2G Akkatai Krishna Patil
2H Chingutai Pandurang Mohite
2I Bharati Subhash Patil ...Respondents
WITH
SECOND APPEAL NO.21 OF 2002
1 Govind Ramji Patil
2 Ananda Balu Patil
3 Devaba Laxman Patil
(since deceased by heirs & L.Rs.)
3A Smt.Tarubai Devaba Patil
3B Yeshwant Devaba Patil
3C Smt.Sharada Rajendra Patil...Appellants
vs
1 Parvati Maruti Patil
2 Yeshwant Maruti Patil
3 Vasant Maruti Patil
4 Dhanaji Maruti Patil
5 Rajendra Maruti Patil
6 Sou Suvarna Ramesh Patil

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7 Sou Sadhana Yeshwant Patil 8 Krishna Daji Patil 9 Rama Daji Patil

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2

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10 Laxman Daji Patil

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11 Hari Daji Patil

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12 Bhimrao Daji Patil

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13 Smt.Jijabai w/o Bhavanji Patil

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14 Gopal Bhavanji Patil

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15 Govind Bhavanji Patil

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16 Santram Bhavanji Patil

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17 Ananda Bhavanji Patil

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18 Hindurao Bhavanji Patil

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19 Smt.Chingubai Pandurang Mohite

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20 Kamalabai w/o Rajaram Patil

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21 Shakuntala w/o Namdeo Lambore

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22 Akkatai Krishna Patil

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23 Bharati w/o Subhash Patil ...Respondents

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Mr.I.M.Khairdi for the appellants in S.A.No.426/1988
Ms Deepa Ahuja for the appellants in S.A.No.21/2002

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CORAM: A.S.OKA,J.
 DATE : JULY 27, 2012

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ORAL JUDGMENT:

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1These Second Appeals were ordered to be heard
along with Contempt Petition No.236 of 1994. All
contempt petitions filed up to the year 2002 have
been assigned to this Court along with connected
matters. Accordingly, Contempt Petition and the
Second Appeals are placed before this Court. By a
separate order, hearing of the Contempt Petition is
deferred as the contesting respondent is not
present. However, the Second Appeals are taken up
for final disposal.

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2 Second Appeal no.426 of 1998 is preferred by
the original plaintiffs in Regular Civil Suit No.393
of 1976. The legal representatives of Daji
Sakharam Patil are the defendants in the said suit.

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3

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3The suit property is land bearing survey no.95
Hissa no.15 totally admeasuring to 2 Acres and 36
Gunthas situated at village Dhanawade, Taluka
Karvir, District Kolhapur. One Shripati Yadav was
the owner of the suit property who agreed to sell
the suit property to the appellants in Second Appeal
no.426 of 1998. The date of agreement for sale is
22nd January 1970. The appellants in the said Second
Appeal filed a civil suit being Regular civil Suit
No.212 of 1970 for specific performance of the
agreement for sale dated 22nd January 1970 and for
possession of the suit property. The said suit was
decreed on 25thFebruary 1971. An execution
application was filed by the appellant. In the
execution application, the sale deed dated 15th April
1971 was executed on the basis of the decree for
specific performance and on 22nd April 1971, the
appellants were placed in possession of the suit
property. The first and second respondents in the
Second Appeal No.426 of 1988 got executed the sale
deed in respect of the suit property on 22nd February
1970 from the original owner Shripati Yadav. It
appears that the first and second respondents in the
Second Appeal filed Miscellaneous Application no.85
of 1971 by invoking Rule 100 of Order XXI of the
Code of Civil Procedure,1908 as it existed before
the amendment of 1976. The prayer in the said
application was for restoration of possession of the
suit property. On 15th March 1976, the Trial Court
passed an order allowing the said application and
directing that the possession of the suit property

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be delivered to the first and second respondents in
the Second Appeal. The appellants filed the present
suit praying for declaration that the first and
second respondents have no right to obtain
possession of the suit property from the appellants
on the basis of the order passed in Miscellaneous
Application no.85 of 1971. A prayer was made for
perpetual injunction restraining the said two
respondents from taking over the possession of the
suit property on the basis of the order passed in
Misc. Application no.85 of 1971.

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4In the written statement filed by the first and
second respondents, they have contended that they
were in possession of the suit property from the
year 1964 and by a sale deed dated 20th February
1970, the original owner confirmed the possession of
the suit property of the first and second
respondents. It is contended that the first and
second respondents have already purchased the suit
property prior to institution of the suit for
specific performance by the appellants and they had
no knowledge about the agreements set up by the
appellants and the suit filed by them. It is
contended that the decree passed in the said suit
was not binding on the first and second respondents.

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5The trial Court decreed the suit. An appeal was
preferred by the first and second respondents before
the District Court. District Court has interfered
and dismissed the suit. On 29th August 1988, the
Second Appeal was admitted by this court by

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observing that grounds (2), (3) and (4) raise
substantial questions of law. Grounds (2), (3) and
(4) of the memorandum of appeal read thus :

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“(2)The substantial question of law involved
in this Second Appeal is that whether the
title of the suit property vests in the
plaintiffs or not?

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(3)Further question of law is whether the
order passed in Miscellaneous Appeal no.85 of
1971 is binding upon the plaintiffs or not?

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(4)Further question of law is whether the
present suit is barred by the principles of
res-judicata?”

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6As far as Second Appeal no.21 of 2002 is
concerned, the same has been filed by the original
plaintiffs in Regular Civil Suit No.1088 of 1994.
In the said suit, the appellants in the companion
Second Appeal were made as party defendants. The
contesting respondents in the companion Second
Appeal were later on impleaded as parties to the
Regular Civil Suit no.1088 of 1994. The appellants
intheSecondAppealNo.21of2002
contended that there was an agreement for sale
executed by the appellants in the Second Appeal
No.426 of 1988 in their favour. It was contended
that the date of the said agreement is 1st August
1986. It was contended that on the basis of the said
agreement, the appellants in Second Appeal no.21 of

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2002 were put in possession. It was contended that
some of the defendants disturbed the possession of
the appellants. Therefore, Regular Civil Suit
No.1088 of 1994 was filed by the appellants for
injunction simplicitor restraining the defendants
therein from interfering with their possession over
the suit property. The suit was contested by the
contesting respondents in the Second Appeal no.426
of 1988 naturally relying upon the sale deed dated
22nd February 1970 and the order was passed by the
Executing Court on 15thMarch 1976 in Misc.
Application no.85 of 1971. The Trial Court decreed
the suit by holding that the appellants were in
possession and their possession was attempted to be
obstructed. An appeal was carried to the District
Court. The District Court has interfered and has
set aside the decree passed by the Trial Court and
directed the appellants to pay compensatory costs to
the respondents. The said Second Appeal was admitted
on 1st March 2002 on the question of law in ground
no.17 and was ordered to be heard along with
companion Second Appeal no.426 of 1988. The ground
no.17 in the memorandum of appeal reads thus :

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“17The substantial question of law that
arise is Whether the learned Appellate court
was correct in holding that the Agreement
dated 1/8/1986 between the plaintiffs and
defendant nos.1 to 6 is bogus, sham and is an
attempt to keep the defendant nos.8 to 23
away from the suit property ?”

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7The learned counsel for the appellants in
support of the Second Appeal no.426 of 1988
submitted that the decree for specific performance
passed in the suit filed by the appellants had
attained finality. He submitted that the agreement
for sale executed by the original owner Shripati in
favour of the appellants was of 22nd January 1970
and the sale deed was obtained by the contesting
respondents on 20th February 1970 from the said
vendor of the appellants. He submitted that the said
respondents were not at all bona fide purchasers and
they had taken the property subject matter of the
suit subject to rights of the appellants on the
basis of the suit agreement. He invited the
attention of the Court to the written statement of
the first and second respondents who claimed to be
in possession from the year 1964. The learned
counsel for the appellants also invited the
attention of the Court to the findings recorded by
the Trial Court and in particular the finding that
the sale deed relied upon by the first and second
respondents of 20th February 1970 was sham and bogus.
He submitted that without assigning any specific
reasons, the decree of the Trial Court has been set
aside without disturbing the aforesaid finding
recorded by the Trial Court. He, therefore,
submitted that the Appellate Court committed an
error by setting aside the decree of the Trial
Court. He submitted that by executing the decree in
the suit for specific performance, the appellants
have become owners and there is no challenge to the
said decree.

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8The learned counsel for the appellants in the
Second Appeal no.21 of 2002 invited the attention of
the Court to the fact that the aforesaid Regular
Civil Suit No.393 of 1976 was filed by the
appellants in Second Appeal no.426 of 1988 and was
decreed on 28th November 1983 by granting injunction
and upholding possession of the appellants in Second
Appeal No.426 of 1988. She pointed out that the
decree passed in the said suit was set aside in the
year 1988. However, the appellants were placed in
possession in the year 1986 by the appellants in the
Second Appeal No.426 of 1988. She submitted that as
on that date, the decree passed in Regular Civil
Suit No.393 of 1978 was holding the field which
protected the possession of the vendors of the
appellants in Second Appeal no.21 of 2002. Inviting
the attention of the Court to the findings of the
Trial Court, the learned counsel submitted that
there is voluminous documentary evidence produced by
the appellants to prove their possession from the
date of institution of the suit. The learned counsel
submitted that the appellants have proved their
settled possession. She relied upon the decision of
the Apex Court in case of Puran Singh and others vs.
The State of Punjab (AIR 1975 SC 1674). The learned
counsel submitted that the suit was simplicitor for
injunction and therefore, the appellants being in
settled possession were entitled to injunction. The
learned counsel further submitted that in a suit
simplicitor for injunction, there was no reason for
the Appellate Court to frame a point for

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9

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determination as to whether the appellants have
proved that their possession was referable to any
right. The learned counsel submitted that as there
was voluminous documentary evidence to show the
possession of the appellants, they could not have
been dispossessed without following due process of
law. The learned counsel submitted that there was
no reason for the Appellate Court to go into the
question of genuineness of the agreement relied upon
by the appellants. The learned counsel further
submitted that the Appellate Court could not have
gone into the various issues of title when the suit
is simplicitor for possession.

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CONSIDERATION OF SUBMISSIONS IN SECOND APPEAL NO.426 OF 1988

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9I have given careful consideration to the
submissions. It must be noted here that the first
and second respondents in Second Appeal no.426 of
1988 obtained sale deed of the suit property dated
22nd February 1970 from Shripati, the vendor of the
appellants in the said Second Appeal. The
appellants were claiming under the agreement for
sale dated 22nd January 1970 and the first and
second respondents obtained sale deed subsequent
thereto on 22nd February 1970. In the execution of
the decree for specific performance in the suit for
specific performance filed by the appellants, they
obtained possession of the suit property. The first
and second Respondents in the Second Appeal No.426
of 1988 filed Misc. Application no.85 of 1971 to

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which the appellants were parties. After hearing
the appellants, an order was passed by the executing
Court on 15th March 1976 directing restoration of the
possession to the first and second respondents. It
must be noted here that the said order of
restoration of possession was never challenged by
the appellants by filing appropriate proceedings.
It will be important to make a reference to the
plaint by the appellants. In the plaint it is not
contended that the proceeding of Misc. Application
no.85 of 1971 is nullity or the order passed thereon
is null and void. The contention is that the first
and second respondents who obtained sale deed from
the vendor of the appellants were not bona fide
purchasers and they had no right to apply under Rule
100 of Order XXI of the said Code. It is merely
contended that the order passed on the miscellaneous
application was illegal and was not binding on the
appellants. So long as the order of restoration of
possession was not set aside by the Competent Court,
the appellants were bound by the said order. It is
pertinent to note that it is not the case of the
appellants that the said order is nullity. The
first declaration sought is that the first and
second respondents have no right to obtain
possession from the appellants on the basis of the
order passed in Miscellaneous application no.85 of
1971. The order passed in the said miscellaneous
application has attained finality. Moreover, there
is no challenge to the said order on the ground that
the same was without jurisdiction. Therefore, on
plain reading of the averments made in the plaint,

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the substantive relief of declaration as prayed for
could not have been granted, especially, when the
appellants did not challenge the said order passed
in Miscellaneous application no.85 of 1971 in
accordance with law.

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10As far as questions of law framed are
concerned, one of the questions is regarding plea of
bar of res-judicata. The other question is whether
the order in Misc. Application no.85 of 1971 is
binding on the Appellants in Second Appeal no.426 of
1988. The appellants were parties to the
Miscellaneous Application no.85 of 1971 and
therefore, they are bound by the said order in
absence the plea that the said order was null and
void. The first and second respondents obtained
sale deed from the original owner prior to the date
of filing of the suit for specific performance of
the agreement for sale by the appellants. There was
only an agreement for sale executed in favour of the
appellants which does not create any interest in the
property as provided in section 54 of Transfer of
Property Act,1882. In the circumstances, the
Appellate Court was justified in setting aside the
decree of the Trial Court in as much as the order of
possession passed on Miscellaneous Application no.85
of 1971 was binding on the appellants.

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CONSIDERATION OF SUBMISSIONS IN SECOND APPEAL NO.21 OF 2002.

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11Now turning to the Second Appeal no.21 of 2002,

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it must stated here that the appellants (original
plaintiffs) claimed on the basis of the agreement
for sale executed by the appellants in Second Appeal
No.426 of 1988. As pointed out earlier, the first
and second respondents in Second Appeal no.426 of
1988 acquired title by virtue of a registered sale
deed even before the suit for specific performance
by the appellants in the said companion Second
Appeal was filed. When the appellants in the
present Second Appeal entered into an agreement,
there was already an order passed in the aforesaid
miscellaneous application directing restoration of
the possession. It is true that the appellants
filed a suit simplicitor for injunction. The Courts
below and especially the Appellate Court has
considered the aforesaid factual aspects which
clearly show that before the predecessor of the
appellants could file a suit for specific
performance, the suit property was already sold by
the original owner of the suit property. When the
agreement for sale was entered in favour of the
appellants, it is true that the decree for
declaration in Regular Civil Suit No.393 of 1976 was
operative. However, the order passed in favour of
the first and second respondents in Second Appeal
no.426 of 1988 of restoration of possession on the
basis of the sale deed in their favour was also
operative.

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12Relief of perpetual injunction under the
Specific Relief Act,1963 is always discretionary
being an equitable relief. Considering the factual

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scenario as above, the Appellate Court has
interfered with the decree of perpetual injunction
passed by the Trial Court. It is true that the
appellants were not claiming any title in respect of
the suit property. However, considering the
aforesaid factual aspects, the Appellate Court has
denied the discretionary and equitable relief of
perpetual injunction to the appellants. It must be
noted that the agreement for sale executed in favour
of the appellants specifically provided that the
sale deed will be executed by the appellants in the
companion appeal after the suit filed by them was
decided which shows that the agreement was obtained
by the appellants with full knowledge of pendency of
appeal arising out of the suit which is the subject
matter of the Second Appeal No.426 of 1988. It is
necessary to point out that when the appeal against
the decree passed in Regular Civil Suit No.393 of
1976 was pending, the appellants entered into an
agreement for sale. Hence, the Appellate Court
rightly denied the equitable relief of perpetual
injunction. Hence, it is not possible to interfere
with the findings recorded by the Appellate Court.

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13 Accordingly, I pass the following order :

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.Second Appeal nos.426 of 1988 and 21 of 2002
are hereby dismissed with no order as to costs.

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 JUDGE

Parvatibai Maruti Patil and Others. v. Krishna Daji Patil and Others.

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Parvatibai Maruti Patil and Others. v. Krishna Daji Patil and Others.

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