Satyabhamabai Bhiwaba Lakade, Deceased. Vs Taibai Dhansing Jadhav, Deceased.

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Neeta Sawant 1/13 SA-763-2023-FC
 18 January 2024.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 763 OF 2023

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WITH

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INTERIM APPLICATIONS (ST.) NOS. 501 OF 2024 AND 500/2024

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AND

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SECOND APPEAL NO. 722 OF 2023

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WITH

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INTERIM APPLICATION NO. 18443 OF 2023

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Satyabhama Bhivba Lakade (since

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Deceased through Legal Heirs),

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Sanjay Bhivba Lakade and Ors. ….Appellants
 V/s.
Smt. Taibai Dhanshing Jadhav

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(since deceased through Legal Heirs)

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Hirabai Vitthal Salunke and Ors. ….Respondents

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 __________

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Mr. N.V. Gaikwad alongwith Mr. Dhananjay Bhosale, for the
Appellants.

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Mr. Abhijit Kulkarni alongwith Mr. Krushna Jaybhay and Mr.
Gaurav Shahane, for the Respondents.

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___________

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Neeta Sawant 2/13 SA-763-2023-FC
 18 January 2024.

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CORAM : SANDEEP V. MARNE, J.

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 Dated : 18 January, 2024.

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ORAL ORDER:

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1. Second Appeal No. 722 of 2023 is not on board. Since
both the Appeals arise out of common Judgment and Order passed
by the first Appellate Court, Second Appeal No.722 of 2023 is
taken on board and with the consent of the learned counsel
appearing for the parties, both appeals are decided by common
order.

¶25

2. These Appeals are filed by the Appellants challenging
the common judgment and order dated 4 September 2023 passed
by the District Judge, Baramati by which the Appellant’s Appeal
bearing Regular Civil Appeal No. 88 of 2013 is dismissed and
Respondent’s appeal bearing Regular Civil Appeal No.97 of 2013 is
partly allowed. Appellants are the Original Defendants in Regular
Civil Suit No. 241 of 2005 filed by the Plaintiffs (Respondent
Nos.1 and 2) for a declaration that the document dated 14
February 1976 executed by the Plaintiff in favour of Defendant
No.1 is not an agreement for sale but as a mortgage deed. Plaintiff
sought prayer for cancellation of the Agreement for Sale dated 14
February 1976 by accepting mortgage money of Rs.11,000/- by
Defendant No.1. Plaintiffs also sought possession of the two
properties as consequential relief to declaration of document dated

¶26

Neeta Sawant 3/13 SA-763-2023-FC
 18 January 2024.

¶27

14 February 1976 as mortgage. In the suit filed by the Plaintiffs,
Defendant No.1 filed counterclaim seeking specific performance of
Agreement for Sale dated 14 February 1976 and further sought a
prayer not to disturb her possession in respect of the suit property.
By Judgment and Decree dated 3 April, 2013, the Trial Court
proceeded to dismiss both suit as well as counterclaim. Aggrieved
by the decree dated 03 April 2013, both Plaintiffs as well as
Defendant No.1 filed their respective Appeals. Plaintiffs filed
Regular Civil Appeal No. 97 of 2013 to the extent of dismissal of
their suit. Defendants filed Regular Civil Appeal No.88 of 2013 to
the extent of rejection of the counterclaim. The First Appellate
Court has delivered the common Judgment and Order dated 4
September 2023 by which, the Defendant’s Regular Civil Appeal
No.88 of 2013 has been dismissed, whereas Plaintiff’s Regular
Civil Appeal No.97 of 2013 has been partly allowed and Plaintiff’s
suit has been partly decreed by directing the Defendants to
handover possession of the suit property to the Plaintiffs with a
direction to the Plaintiffs to refund the amount of Rs.16,000/-
alongwith interest at the rate of 6% p.a. from the date of filing of
the suit. Defendants are aggrieved by the common judgment and
Order dated 4 September 2023 passed by the District Judge in
Regular Civil Appeals No.88 of 2013 and 97 of 2013 and they
accordingly filed the present Appeals.

¶28

3.As the hearing of the Appeal commenced, this Court
raised a query with Mr. Kulkarni, the learned counsel appearing

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Neeta Sawant 4/13 SA-763-2023-FC
 18 January 2024.

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for Respondent Nos.1 and 2 (Original Plaintiffs) as to how the
District Court could have granted the relief of possession in favour
of the Plaintiffs by recording a finding that Defendant Nos.1 and 2
were not ready and willing to perform their part of contract under
the provisions of Section 53A of the Transfer of Property Act. This
query was raised as the Plaintiffs’ suit was for declaration of the
Deed dated 14 February 1976 as mortgage and not the sale-deed.
The prayer for possession sought by Plaintiffs was a consequential
relief to declaration of title dated 14 February 1976 as a mortgage.
Plaintiff did not pray for alternate relief of recovery of possession
even if the document was to be treated as an agreement for sale by
contending that Defendants were not ready or willing to perform
the agreement dated 14 February 1976 and that therefore they
must deliver possession of the suit property to the Plaintiff. Thus
the end result of the common Judgment and Order of the
Appellate Court is such that on account of Defendant’s failure in
their counterclaim to secure a decree of specific performance of
agreement dated 14 February 1976, the first Appellate Court has
directed delivery of possession of the suit properties. Thus, in
absence of any specific case being pleaded in the plaint and in
absence of any relief for delivery of possession on account of non-
performance of Agreement dated 14 February 1976, the first
Appellate Court has proceeded to grant the relief of possession in
favour of the Plaintiffs only because the Defendants failed in their
counterclaim. Faced with this situation, Mr. Kulkarni took
instructions from Respondent Nos.1 and 2 (Original Plaintiffs) and

¶31

Neeta Sawant 5/13 SA-763-2023-FC
 18 January 2024.

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he makes a fair statement that the direction of the first Appellate
Court for delivery of possession of suit properties can be set aside
by granting liberty to the Plaintiffs to file a suit for recovery of
possession of the suit properties. In view of the said statement
made by Mr. Kulkarni on behalf of Respondent Nos.1 and 2
(Original Plaintiffs) and, direction No.5 in the operative portion of
common Judgment and Order dated 4 September 2023 is set
aside with consent of the Appellants and Respondent Nos.1 and 2
(Original Plaintiffs).

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4. After the direction of the first Appellate Court for
handing over possession of the suit properties by Defendants to
Plaintiffs is set aside by this Court, Mr. Gaikwad the learned
counsel appearing for the Appellants would press the Appeals qua
dismissal of Regular Civil Appeal No. 88 of 2013 and qua rejection
of counterclaim filed by Defendant No.1. He would submit that
the trial Court has erred in dismissing the counterclaim filed by
DefendantNo.1, who was always ready and willing to perform her
obligations arising out of the Agreement for Sale dated 14
February 1976. He would submit that the Plaintiffs have
erroneously not fulfilled their obligation under the Agreement
dated 14 February 1976 under a misconception that the said
document was not a mortgage deed. That on account of orders
passed by the Trial and the first Appellate Court, it is conclusively
proved that the document dated 14 February 1976 is not a
mortgage deed but an agreement for sale. That the Trial and the

¶34

Neeta Sawant 6/13 SA-763-2023-FC
 18 January 2024.

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first Appellate Court ought to have drawn an inference that the
Plaintiffs were responsible for non-finalisation of transaction of
sale by erroneously treating the transaction as mortgage when the
same was that of sale. He would further submit that a specific
stipulation in the Agreement required the Plaintiffs to obtain
permission from Government Authorities before completion of sale
transaction. That admittedly till date of filing of counterclaim, the
Plaintiffs failed to obtain such permission and therefore Plaintiffs
cannot be permitted to take advantage of their own mistake. That
Defendant No.1 was always ready and willing to execute the sale-
deed but she could not do so on account of failure on the part of
the Plaintiffs to obtain requisite permission to effect the
transaction of sale. He would submit that the covenant requiring
prior permission of the Collector was incorporated in the
Agreement for sale on account of specific Notification issued by
the Government of Maharashtra imposing a ban on any sale
transactions till coming into effect of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act (Fragmentation
Act). He would submit that such ban continued to remain in
operation and in emergency situation, specific provision was made
to effect the transaction of sale by obtaining the prior permission
of the Collector. That since ban on effecting transactions of sale
continued to operate and since Plaintiffs failed to take any steps to
obtain such permission, Defendant No.1 cannot be accused of not
showing interest in completing the transaction of sale. He would
further submit that if it is the case of the Plaintiffs that the ban on

¶36

Neeta Sawant 7/13 SA-763-2023-FC
 18 January 2024.

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sale transaction was withdrawn at any point of time, it was the
duty of Plaintiffs to give an intimation to that effect to Defendant
No.1, who would have then got the sale-deed executed in her
favour. He would further submit that there is no cogent evidence
in support of the findings recorded by the trial and the first
Appellate Court about failure on the part of Defendant No.1 to
directly deposit the loan amount of Rs.14,000/- in the bank of the
Plaintiffs. That in absence of any cogent evidence, mere surmise is
drawn by the Trial and the first Appellate Court in that regard. He
would submit that the evidence needs to be reappreciated by this
Court for the purpose of arriving at a conclusion that Defendant
No.1 was always ready and willing to perform her part of the
contract. He would therefore submit that substantial questions of
law are involved in the present Appeals warranting their
admissions and setting aside the orders passed by the first
Appellate Court and the Trial Court to the extent of rejection of
counterclaim filed by Defendant No.1.

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5.Per-contra, Mr. Kulkarni, the learned counsel
appearing for Respondent Nos.1 and 2 (original plaintiffs) would
oppose the Appeals and support the orders passed by the first
Appellate Court. He would submit that the Agreement for sale
was executed on 14 February 1976 and till filing of counterclaim
on 3 September 2008, Defendant No.1 never came forward for
execution of sale-deed in her name in pursuance of the Agreement
for Sale. That the so called ban on transactions on account of

¶39

Neeta Sawant 8/13 SA-763-2023-FC
 18 January 2024.

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implementation of the Fragmentation Act was lifted on 28 August
1977. In support of his contention, he would rely upon the
judgment of this Court in Nakubai Valu Dhokane, since deceased
through heirs and LR’s Vs. Bhagwansingh Prakash Chandra, 2008
(6) Mh.L.J. 105. He would take me through the various findings
recorded by the Trial as well as the first Appellate Court to
demonstrate as to how the Defendant No.1 did not satisfy the
basic condition of deposit of loan amount of Rs.14,000/- in the
Bank Account of the Plaintiff. That the intention of Defendant
No.1 not to complete the sale transaction is apparent from her
contemporaneous conduct when she failed on the promise of
repaying the loan of Rs.14,000/- by making a direct deposit in
Petitioner’s Bank Account. Further, the conduct of Defendant No.1
in maintaining silence for next 32 long years, leaves no matter of
doubt that Defendant No.1 was never willing to get the sale
transaction completed in her name. He would submit that except
the modification as consented by Defendants Nos.1 and 2
(Original Plaintiffs), Appeals filed by the Appellants are required
to be rejected.

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6. Rival contentions of the parties now fall for my
consideration.

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7. Original Plaintiffs (Respondent Nos.1 and 2) have
fairly agreed to modification of the common Judgment and Order
passed by the first Appellate Court to the extent of direction for

¶43

Neeta Sawant 9/13 SA-763-2023-FC
 18 January 2024.

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delivery of possession of the suit properties by the Defendants to
Plaintiffs. Since Direction No.5 in the operative portion of the first
Appellate Court’s common Judgment and Order dated 4
September 2023 is set aside, Plaintiffs will have to adopt necessary
remedies for recovery of suit properties from Defendant No.1.
However, Defendants are not satisfied with this relief and they
desire that sale transaction in pursuance of the Agreement for Sale
dated 14 February 1976 must be completed in their names. To this
limited extent, the learned counsel appearing for the rival parties
have canvassed the submissions as recorded above.

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8.The trial and the first Appellate Court has refused to
grant the relief of specific performance in favour of Defendant
No.1 by recording a finding of fact that she was not ready or
willing to perform her part of contract. It must be noted here that
the Agreement for Sale was executed on 14 February 1976. It is
an admitted position that till date of filing of counterclaim by
Defendant No.1 on 23 September 2008, she did not write to
Plaintiffs even once calling upon them to execute the sale-deed in
her name. Silence on the part of Defendant No.1 for 32 long years
assumes importance for determining her readiness or willingness.
Another factor which is taken note of by the trial and the first
Appellate Court is that the Agreement contained a stipulation for
payment of amount of Rs.14,00,000/- to Defendant No.1 in the
account of the Plaintiffs in the Bank of Maharashtra to satisfy the
outstanding amount of loan. Both the trial and the first Appellate

¶46

Neeta Sawant 10/13 SA-763-2023-FC
 18 January 2024.

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Court have recorded a finding of fact that the said loan cccount
was not closed and that the Bank of Maharashtra recovering the
balance outstanding amount in the loan Account from the
Plaintiffs by filing execution proceedings. On the basis of the said
factum of forcible recovery made by Bank of Maharashtra from
Plaintiffs, the trial and the first Appellate Court have recorded a
finding of fact that Defendant No.1 failed to deposit the amount of
Rs.14,000/- in Plaintiff’s Bank. Thus, it is conclusively proved
before the Trial and the First Appellate Court that Defendant No.1
failed to pay the consideration of Rs.14,000/- agreed in the
Agreement dated 14 February 1976. This conduct on the part of
defendant No.1 goes a long way to suggest her reluctance to
complete the transaction of sale in her favour.

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9.The next issue is about the condition incorporated in
the Agreement for obtaining permission for completion of the sale
transaction. The Trial Court has recorded a finding that no prior
permission was necessary for alienation of agricultural land in the
year 1976. The learned counsel appearing for the Appellants has
submitted that on account of proposed implementation of the
Fragmentation Act, a freeze was imposed on sale transactions
pending consolidation of land holdings. While he may be correct
in contending that there was a temporary freeze on the sale
transactions, he is entirely wrong in assuming that such a freeze
continued to operate indefinitely. As a matter of fact from the
judgment of Nakubai (supra), it appears that the ban was lifted

¶49

Neeta Sawant 11/13 SA-763-2023-FC
 18 January 2024.

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immediately after introduction of Section 31AB in the
Fragmentation Act in the year 1977. This Court has held in para-
25 of the Judgment as under :

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It is true that from15th November, 1965 till 28th August,
1977 there was restriction on alienation and sub-division
of consolidated holdings and also the transfer and sale was
barred under section 31 of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act without
prior permission of the Collector. However, by
Maharashtra Act XLI of 1977, section 31-AB was
introduced and, therefore once restriction under section 31
to alienate, sale or transfer was lifted by introducing
section 31-AB, the respondent/plaintiff should have taken
steps to execute the sale deed within one month from
commencement of Maharashtra Act 41 of 1977.

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10. I am therefore of the view that the ruse of failure on the
part of the Plaintiffs to obtain sale permission cited by Defendant
No.1 to prove her readiness and willingness is unacceptable and
has rightly been rejected by the Trial and the First Appellate Court.

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11. After considering the overall conspectus of the case, I
am of the view that except the modification in the final decree of
the first Appellate Court as agreed by the Original Plaintiffs, no
further modification therein is warranted. After setting aside the
direction for delivery of possession of suit properties by
Defendants to Plaintiffs, no substantial question of law remains to
be decided in the present Appeal.

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Neeta Sawant 12/13 SA-763-2023-FC
 18 January 2024.

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12. While declining the relief of specific performance in
favour of Defendant No.1, the first Appellate Court has moulded
the relief and directed the Plaintiffs to refund the amount of Rs.
16,000/- alongwith interest at the rate of 6% p.a. to the
Defendants from the date of filing of the suit till recovery of suit
property. It appears that the Original Plaintiffs have already
deposited the said amount with interest in the Trial Court.

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13. I accordingly proceed to pass the following order:

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(i) The common Judgment and Order dated 4 September 2023 passed by the District Judge, Baramati in Regular Civil Appeal No. 97 of 2013 is set aside and Regular Civil Appeal No. 97 of 2013 is dismissed. Accordingly, direction No. V in the operative portion of the Judgment and Order dated 4 September 2023 stands set aside and deleted. Rest of the directions in the common Judgment and Order dated 4 September 2023 shall remain undisturbed.

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(ii) Regular Civil Suit No. 241 of 2005 is dismissed.

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(iii) With the above directions, the Second Appeal No. 763 of 2023 is allowed to the above extent and Second Appeal No. 722 of 2023 is dismissed.

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Neeta Sawant 13/13 SA-763-2023-FC
 18 January 2024.

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(iv) Respondent Nos.1 and 2 (Original Plaintiffs) shall be at liberty to institute a fresh suit to seek recovery of possession of suit properties from the Defendants. No findings recorded by the Trial, first Appellate Court as well as this Court shall come in the way of Respondent No.1 (Original Plaintiffs) while prosecuting the said suit and all contentions of the parties with regard to entitlement of Original Plaintiffs to seek possession of suit properties from the Defendants are kept open.

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(v) It would be open for Defendant No.1 to withdraw the amount of Rs. 16,000 deposited by Plaintiff in the Trial Court along with accrued interest.

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14. With the above directions, both Second Appeals are
disposed of without any order as to costs. With the disposal of the
Appeals, Interim Applications do not survive. The same also stand
disposed of.

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NEETA SHAILESH SAWANT

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SANDEEP V. MARNE, J.

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Digitally signed by NEETA SHAILESH SAWANT Date: 2024.01.24 16:24:42 +0530

Satyabhamabai Bhiwaba Lakade, Deceased. v. Taibai Dhansing Jadhav, Deceased.

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Satyabhamabai Bhiwaba Lakade, Deceased. v. Taibai Dhansing Jadhav, Deceased.

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