Second appeal against specific performance decree denied. Bench found lower courts correctly established title and execution of agreement. Objections regarding land nature were not raised below. Appeal dismissed.
Second Appeal dismissed at admission stage; Civil Application No. 8151 of 2022 also disposed of.
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SA-303.2022.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO. 303 OF 2022
WITH
CIVIL APPLICATION NO. 8151 OF 2022
Waman s/o Jema Jadhav Age : 49 yrs, occ : agri & labour R/o Hasegaon, Taluka Ausa, District Latur.
Appellant
Versus
Govind Kishan Pawar Age : 48 yrs, occ : agri., R/o Nitur Tanda, Taluka Nilanga, District Latur.
Respondent
Mr. M.L. Dharashive, Advocate for the appellant. Mr. B.R. Kedar, Advocate for the respondent.
CORAM : SANDIPKUMAR C. MORE, J. Dated : 11 January 2024.
Order :
1. Heard rival submissions. This appeal is filed by
the appellant/original defendant against the grant of specific performance against him and in favour of appellant/plaintiff. The learned trial Court i.e. 2nd Joint Civil Judge (Junior Division), Ausa has decreed the suit bearing R.C.S. No. 481/2012 in favour of present respondent/plaintiff and thereby directed the appellant/defendant to execute sale deed of the suit land i.e. land admeasuring 35 R from Gut No.361
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situated at Hasegaon, Taluka Ausa, district Latur by accepting balance amount of consideration. The appellant is also directed to deliver possession of the suit land on execution of sale deed. Thereafter the first appellate court i.e. District Judge-2, Latur on hearing rival submissions, dismissed the appeal i.e. R.C.A. No.128/2019 filed by the present appellant against the decree of learned trial Court. Thus, the present Second Appeal is against two concurrent findings.
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was raised by the appellant/defendant in his written statement before the learned trial Court that the suit land could not be transferred in view of the provisions of Prevention of Fragmentation and Holdings Act. It is significant to note that the area of the suit land is of 35 R and no objection was raised by the appellant/defendant that it was Bagayat land. Therefore, in absence of evidence about the nature of suit land, whether Bagayat or Jirayat, the
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appellant cannot raise this objection at the stage of Second Appeal. Likewise, there is no force in the submission made on behalf of the appellant that the disputed agreement of sale was bad for want of registration as per the provisions under Section 17 of the Indian Registration Act. It is to be noted that such registration of agreement of sale is required only if possession of land in dispute was transferred. Here in this case, the learned trial Court has already directed appellant to hand over the possession of suit land in favour of the respondent / plaintiff only after execution of sale deed.
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these facts, it appears that both the lower Courts below have properly appreciated the evidence and concurred in findings in favour of the present respondent/plaintiff. As such, in view of the above discussion, no substantial question of law appears to be involved in this appeal. Therefore, the appeal stands dismissed at the admission stage. In view of dismissal of second appeal, the pending Civil Application No. 8151 of 2022 also stands disposed of.
(SANDIPKUMAR C. MORE, J.)
VD_Dhirde
2 issues framed by the court
Whether the trial and first appellate courts erred in granting specific performance when the suit land was allegedly not in the appellant's name or not transferable.
Whether an unregistered agreement of sale binds the parties for the purpose of a specific performance decree where possession is to be delivered only upon execution of the sale deed.
2 provisions across 2 enactments
Waman s/o Jema Jadhav
Govind Kishan Pawar
SANDIPKUMAR C. MORE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
