1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1613 OF 2005 1 Mohan Lahanu Teli, age: 67 years, Occ: Business, (Oil Merchant), R/o Kali Kurti Road, Jalna. 2 Bhaurao Sakharam Teli, (deceased) by his heirs and L.Rs: 2(1) Anjanabai w/o Bhaurao Waghmare, age: 66 years, Occ: Household, R/o Modikhana, Sadar Bazar, Jalna. 2(2) Kantabai w/o Bhaurao Waghmare, age: 54 years, Occ: Household, R/o as above. 2(3) Shivaji Bhaurao Waghmare, age: 48 years, Occ: Trade, R/o as above. 2(4) Tanaji s/o Bhaurao Waghmare, age: 38 years, Occ: Trade, R/o as above. 2(5) Uttam s/o Bhaurao Waghmare, age: 37 years, Occ: Trade, R/o as above. 2(6) Manikrao Bhaurao Waghmare, age: 33 years, Occ: Trade, R/o as above. 2(7) Tarachand Bhaurao Waghmare, age: 29 years, Occ: Trade, R/o as above. Appellants Versus 2 1 Narayan Bapuji Dhotre, deceased, by his heirs & L.Rs: 1(1) Yogiraj Narayan Dhotre, age: 56 years, Occ: Service, R/o Double Gin, Old Jalna, Jalna. 1(2) Subhash Narayan Dhotre, age: 46 years, Occ: Service, R/o as above. 1(3) Smt.Kausaliyabai w/o Narayan (Dismissed as per Court’s Dhotre, Order dated 12.08.2008). 1(4) Kum.Shalini d/o Narayan Dhotre, age: 27 years, Occ: Student, R/o as above. 1(5) Sou.Sharda w/o Ashokrao Sarode, age: 31 years, Occ: Household, R/o Bhavsar Galli, Sadar Bazar, Jalna. 1(6) Sou.Kanta w/o Dattatray Lande, age: 38 years, Occ: Household, R/oMohalla Manga Bazar, Kadrabad, Jalna. 1(7) Smt.Saraswatibai w/o Dashrathrao (Dismissed as per Court’s Dhavale. Order dated 12.08.2008) 1(8) Sou.Shashikalabai w/o Pundlikrao Patange, age: 76 years, Occ: Household, R/o Pet Galli, Manwat, District Parbhani. 1(9) Smt.Yamunabai w/o Vithalrao Tandale, age: 68 years, Occ: Household, R/o Sardar Patel Road, ParliVaijnath, District Beed. 1(10) Sou.Shantabai w/o Panditrao Bulbule, age: 41 years, Occ: Household, 3 R/o Vitoli Galli, Jintur, District Parbhani. Respondents Mr.L.V.Sangeet, advocate holding for Mr.V.J.Dixit, Senior Counsel for appellants. Mr.S.V.Gangapurwala with Mr.L.B.Palod, advocate for Respondents No.1/1, 1/2.1/4,1/5,1/6, 1/8 & 1/10. Dismissed as against Respondents No.1/3 and 1/7. CORAM: R.M.BORDE, J. DATE : 23rd September, 2009. P.C.: 1 This is an appeal by original defendants raising exception to the concurrent judgments delivered by the Courts below. 2 Plaintiff instituted suit claiming recovery of possession of agricultural properties. According to deceased plaintiff Narayan, he is owner of the property involved in the litigation and it is his self acquired property. There was an oral agreement of sale entered into with defendants in the year 1961 by the plaintiff. The amount of consideration settled was Rs.12,000/- and advance sum of Rs.7500/- was received from the defendants. According to the plaintiff, defendants forcibly dispossessed the plaintiff from possession over suit property in the year 1961. Defendants have neither performed their part of contract nor delivered back possession to the plaintiff. As such, plaintiff issued notice to the defendants on 28.03.1973 telegraphically rescinding the contract and calling upon the defendants to deliver possession of the suit property back to him. As the defendants refused to hand over possession, plaintiff was constrained to approach the Court for the relief as stated above. 3 Defendants resisted the suit claim by filing written statement. According to them, there was an agreement to sale in writing, however, the document is not traceable. Defendants sought leave to produce the document 4 as and when same is traced. Defendants further contend that there was no stipulation of period for execution of sale deed contained in the agreement. Thus time is not essence of the contract. Plaintiffs were required to secure permission as contemplated under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Plaintiffs, having failed to secure permission, are not entitled to ask for redelivery of possession. The contention of the plaintiffs that, defendants have dispossessed them by use of force, is denied by defendants. According to defendants, they are ready to perform their part of contract. As such, defendants prayed for specific performance of the contract by way of counter claim. 4 The trial Court, after recording evidence of the parties, arrived at a finding that the plaintiffs have established their case. The trial Court has recorded a finding that from the terms of agreement, it is revealed that time is not essence of the contract. It has been held by the trial Court that defendants have failed to secure permission, as required under Section 47 of the Hyderabad Tenancy & Agricultural Lands Act, and securing of such permission was in fact responsibility of the defendants as per terms of the agreement. In this view of the matter, trial Court has recorded a finding that defendants have failed to perform their part of contract. It has also been recorded by the trial Court that defendants are not entitled to seek protection under Section 53 of the Transfer of Property Act. The trial Court has, thus, granted decree in favour of the plaintiffs, directing delivery of possession of suit property. The counter claim raised by defendants came to be dismissed by the trial Court. It has also been held by the trial Court that presentation of counter claim is beyond prescribed period of limitation. The cause of action has accrued on 28.03.1973 when plaintiff rescinded the contract, however, counter claim was filed on 26.07.1977, which is obviously beyond the prescribed period of limitation. 5 5 The judgment and decree passed by the trial Court was subjected to challenge at the instance of defendants in Regular Civil Appeal No.38/1998. The appeal came to be heard and disposed of by II Ad hoc Additional District Judge, Jalna, who was pleased to dismiss the same by judgment and order dated 08.08.2005. 6 I have perused the judgments recorded by both the Courts below. Although defendants have contended that there is a written document executed in respect of agreement to sale, however, same is not forthcoming. On the basis of oral evidence led by the parties, the Courts below have recorded a finding that defendants have to secure the permission as contemplated under Section 47 of Hyderabad Tenancy & Agricultural Lands Act. Defendants, having failed to secure appropriate permission, cannot be permitted to make a grievance and allege that plaintiff himself has failed to perform his part of contract. It is also an established fact that notice was issued by the plaintiff rescinding the contract on 28.03.1973, however, defendants did not raise counter claim within stipulated period. The counter claim itself is lodged on 26.07.1977, which is obviously beyond the prescribed period of limitation. The Courts below were, therefore, justified in turning down the defence set up by defendants. Plaintiff is entitled to seek recovery of possession of the property. There does not appear to be any error committed by the Courts below in recording reasons. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. In view of disposal of appeal, pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa161305