Dismissed

Kashinath Shankar Mahadik v. Mohan Dagadu Wadekar

Bombay HC20 Jun 2013SA/179/2011

Case brief

AI extract

What is this about?

Second Appeal challenging Civil Judge's judgment dismissing suit for cancellation of sale deed. Bench found no substantial question of law arising as Courts below rightly disbelieved plaintiff's claim of coercion and lack of consideration.

What did the court decide?

Second appeal and supporting Civil Application dismissed.

What the court decided

Kashinath Shankar Mahadik Vs Mohan Dagadu Wadekar — Property and Title | Bombay HC (2013)

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Tapadia RR

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1 / 4 SA/179/2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 179 OF 2011 WITH

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CIVIL APPLICATION NO. 443 OF 2011 IN SA/179/2011

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Shri Kashinath Shankar Mahadik

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..Appellant

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Shri Mohan Dagadu Wadekar .. Respondents

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Mr.Swapnil Patil i/b Mr. S.V.Sadavarte, Advocate for the Appellant. Ms.Sheron Patole i/b Mr Anurag Jain, Advocate for respondent.

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CORAM : R.G.KETKAR,J. DATE : 20/06/2013

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PC:

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Heard Mr. Swapnil Patil, learned counsel for the appellant and Ms. Sheron Patole, learned counsel for the respondent at length.

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By this Appeal under section 100 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’), the original plaintiff has challenged the Judgment and decree dated 12.1.2005 passed by the learned Civil Judge, Junior Division, Pimpri, Pune in Special Civil Suit No.1630 of 1994 which was re-numbered as Regular Civil Suit No.316 of 2000, as also the Judgment and decree dated 20.12.2010 passed by the learned District Judge-2, Pune in Civil Appeal No.157 of 2005. By these orders, the Courts below dismissed the suit instituted by the appellant praying for cancellation of the sale deed dated

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2 / 4 SA/179/2011

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28.11.1991 executed by him in favour of the respondentdefendant.

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In support of this Appeal, Mr. Patil strenuously contended that the defendant obtained the sale deed dated 28.11.1991 from the plaintiff without paying any consideration as also the defendant threatened him that if he does not execute the sale deed in his favour he will commit murder of the plaintiff. He submitted that the defendant is not a boanafide purchaser of the suit property as also he is not in possession of the suit property. The Courts below committed serious error in holding that the defendant has proved that he is in possession of the suit property since the date of the sale deed. He submitted that the plaintiff is not entitled to injunction. He invited my attention to the relevant portion of the trial Court’s judgment as also the Appeal Court’s judgment as also oral evidence of the plaintiff. On the other hand, Ms. Sharma supported the impugned orders. She submitted that after appreciating the evidence on record the Courts below have disbelieved the case made out by the plaintiff. The Courts below have rightly dismissed the suit and, therefore, no case is made out for exercising powers under section 100 of C.P.C.

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4 I have considered the rival submissions made by the

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3 / 4 SA/179/2011

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learned counsel appearing for the parties. I have also perused the material on record. The Courts below have recorded that before executing the sale deed in favour of the defendant on 28.11.1991, the plaintiff had agreed to sell the property to the defendant by entering into agreements of sale on 14.5.1988, 3.1.1990 and 18.8.1990. The Courts below considered the case made out by the plaintiff that because of the threats and pressure exerted by the defendant he had executed the sale deed without receiving consideration. After considering the material on record, the Courts below disbelieved the case made out by the plaintiffs.

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After hearing the learned counsel for the parties and considering the material on record, I find that the Courts below have rightly disbelieved the case made out by the plaintiff. Perusal of the impugned orders shows that the Courts below have considered the conduct of the plaintiff after he was allegedly threatened by the defendant and came to the conclusion that the plaintiff had failed to establish his case that the sale deed had been obtained by exerting pressure or that the plaintiff did not receive consideration. It is not shown by the plaintiff that the findings recorded by the Courts below are perverse being based on no evidence or that on the basis of evidence on record no reasonable person

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4 / 4 SA/179/2011

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could have come to that conclusion. In view thereof, no substantial question of law arises in this Appeal. The Appeal fails and the same is dismissed.

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In view of dismissal of the Appeal, Civil Application No. 443 of 2011 in Second Appeal No.179 of 2011 does not survive and the same is dismissed.

Kashinath Shankar Mahadik v. Mohan Dagadu Wadekar

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Kashinath Shankar Mahadik v. Mohan Dagadu Wadekar

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