1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECNOD APPEAL NO. 563 OF 1991 SECNOD APPEAL NO. 563 OF 1991 SECNOD APPEAL NO. 563 OF 1991 Chandrashekar Kallappa Govinde, ) age 45 years, occupation Agriculure, ) resident of Chapalgaon Wadi, Taluka ) Akkalkot. )..Appellant (Orig. Plaintiff) Versus 1. Sidhappa Genappa Birajdar ) alias Kalkile, age 74 years, ) occupation Agriculture, resident) of Kumbhari, Taluka South Solapur ) (since expired by his legal heirs ) and legal representatives). ) (a) Smt. Idirabai Kalkile, age 60 years,) occupatiion Household, resident of ) Kumbhari, Taluka South Solapur, ) District Solapur. ) (b) Smt. Rambai Shidhana Kalkile, ) 2 age 45 years, occupation Household, ) resident of Kumbhari, Taluka South ) Solapur, District Solapur. ) (c) Parvatibai Mahadeo Pujari, age 30 ) years, occupation Household, ) resident of Kumbhari, Taluka South ) Solapur, District Solapur. ) (d) Sarubai Vithal Pujari, age 25 years,) occupation Household, resident ) of Ganghadhar Kanbas,Taluka South ) Solapur, District (e) Vithal Shidhana Kalkile, age 30 years) occupation farming, resident of ) Ganghadhar Kanbas, Taluka South ) Solapur, District Solapur. ) (f) Bhutali Shidhana Kalkile, age 25 years) occupation farming, resident of ) Kumbhari, Taluka South Solapur, ) District Solapur. ) (g) Rakhamabai, age 22 years, occupation ) Household, resident of Kumbhari, ) Taluka South Solapur, District ) 3 Solapur. 2. Sharanbasappa Revansidhappa Nimbane ) occupation Service, resident of ) Solapur, Wanmannagar and Chhati ) Galli, Basvanti Market, V.N.Baswanti ) Shop. )..Respondent (Orig. defendants) Mr. Amol Mhatre, Advocate, i/b. Mr. D.K.Dhakephalkar, advocate, for the appellant. Mr. M.R.Katikar, advocate, for the respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 20th August, 2008. DATE: 20th August, 2008. DATE: 20th August, 2008. JUDGMENT JUDGMENT JUDGMENT 1. The original plaintiff has filed the Second Appeal against dismissal of Regular Civil Appeal No.563 of 1996 against dismissal of Special Civil Suit No.52 of 1979 for specific performance of the contract for sale of land. Respondent Nos.1(a) to 1(g) are the legal representatives of deceased defendant No.1, while the respondent No.2 is the original defendant No.2. 4 2. To state in brief, it is a case of the plaintiff-appellant that one Haribai had executed a gift deed of the suit land bearing Gat No.576 admeasuring 14 hectares 78 Ares situated at village Chhapalgaon, Taluka Akkalkot, District Solaupr in favour of the defendant No.1 on 30.10.1964. The plaintiff was cultivating the land as a tenant of Haribai on crop sharing basis and after the gift deed was executed in favour of the defendant No.1, the plaintiff continued to give crop share to the defendant NO.1. In view of these facts, when the defendant No.1 decided to dispose of the land, he asked the plaintiff to purchase it. According to the plaintiff, on 20.7.1972, an agreement took place between himself and the defendant NO.1 whereby the defendant No.1 agreed to sell the suit land to him for consideration of Rs.21,500/-. He also accepted an amount of Rs.3,000/- from the plaintiff as an earnest money. The plaintiff continued to be in possession of the land in part performance of the agreement for sale. According to the plaintiff, defendant No.1 had agreed to obtain necessary permission from the Competent Authority for execution of the sale deed. The plaintiff has always been ready and willing to perform his part of the contract and to pay the balance amount of consideration and to get the sale deed executed. The plaintiff was also insisting upon the defendant no.1 to execute sale 5 deed. On 20.7.1975 and again on 20.7.1977, the defendant No.1 sent letters to the plaintiff wherein he agreed to execute sale deed after obtaining permission from the Competent Authority. Inspite of that, he never executed sale deed in favour of the plaintiff. On the contrary, on 2.8.1977, the defendant No.1 executed a registered sale deed in favour of the defendant No.2 in respect of the suit land. Defendant No.2 was fully aware of the subsisting agreement between the plaintiff and the defendant No.1. He was also aware that the plaintiff was in possession for a period of about 22 years, initially as a tenant and then under the agreement for sale. Therefore, the sale deed in favour of the defendant No.2 is not binding upon the plaintiff. With these contentions, the plaintiff sought a decree for specific performance of the contract against the defendants. He also sought perpetual injunction restraining the defendants Nos. 1 and 2 from disturbing the possession of the plaintiff over the suit land. He also sought compensation of Rs.10,000/- for breach of the agreement. Alternatively, he also prayed for refund of the earnest money with interest thereon. 3. The defendant No.1 contested the suit by his written statement Exhibit 29 and denied that he had ever agreed to sell the suit land to the plaintiff. He also 6 denied that the plaintiff was in possession of the land as a tenant or that he is in possession of the same in part-performance of the agreement. According to him, Haribai was his mother-in-law and because of her old age, she was unable to cultivate the land. Hence, the defendant No.1 used to cultivate the land on her behalf. After execution of the gift deed by her in favour of the defendant No.1, he continued to cultivate the land himself. According to him, he was in need of Rs.1,000/- and therefore he approached the plaintiff, who advanced a loan of Rs.750/-, but insisted for execution of the document purporting to be agreement for sale,deed on clear understanding that the document was not to be acted upon. He also contended that even though he had received only Rs.750/-, in the document the plaintiff had got the amount of Rs.3,000/- mentioned as payment. He contended that without explaining the contents of the document, his thumb mark was taken. The plaintiff is carrying on business of money lending without a valid licence. He also denied to have written letters to the plaintiff on 20.7.1975 and 20.7.1977 admitting to execute the sale deed. According to him, the plaintiff and his friends had come to the village Kumbhari, where the defendant no.1 resides and had fraudulently obtained his thumb mark on some blank papers. He also immediately reported the matter to police and prosecuted 7 them for the same. He contended that the suit is barred by limitation and the plaintiff is not entitled to any relief claimed by him. 4. Defendant No.2 filed the written statement Exhibit 33 and denied the claim of the plaintiff and supported the plea of the defendant No.1. According to him, he has purchased the suit land for valuable consideration without notice of the rights of the plaintiff. According to him, he was also put in possession of the land. However, he was required to file Regular Civil Suit No.40 of 1978 wherein he sought perpetual injunction restraining the present plaintiff and his other companions, who were defendant Nos. 1 to 5 in the said suit, restraining them from interfering in his possession. In the alternative, he had claimed that if he was not found in possession, the decree for possession be passed. 5. Several issues were framed by the trial Court. After hearing the evidence led by both the parties, the trial Court held that the defendant No.1 had agreed to sell the suit land to the plaintiff for consideration of Rs.21,500/- and had received amount of Rs.3,000/- as earnest money and accordingly an agreement for sale was executed. However, the trial Court held that the 8 plaintiff was never in possession of the land as a tenant nor the defendant No.1 had confirmed his possession in part performance of the agreement for sale. The trial Court also rejected the contention of the defendant No.1 that he had obtained loan of R.750/- and that a nominal agreement for sale was executed and that it was not to be acted upon. However, the trial Court also found that the plaintiff had failed to prove that he was always ready and willing to perform his part of the contract. Tthe trial Court hld that the suit is barred by limitation. However, the trial Court also observed that from 1975 the plaintiff appears to be in possession of the suit land. With these findings, the trial Court dismissed the suit for specific performance of the contract as well as for refund of consideration and compensation. However, in view of the finding that the plaintiff is in possession, the defendant Nos. 1 and 2 were directed not to disturb his possession till they get possession by following legal remedies. 6. Being aggrieved by dismissal of the suit for specific performance, the plaintiff preferred Regular Civil Appeal No.556 of 1985 before the District Court, Solapur. The appellate Court also came to the conclusion that the defendant No.1 had agreed to sell the suit land and had received earnest money as pleaded 9 by the plaintiff. The appellate Court also came to conclusion that the plaintiff has not proved that he was ready and willing to perform his part of the contract and also that the suit was barred by limitation. With this finding, the Appeal came to be dismissed. Therefore the plaintiff has preferred the Second Appeal. 7. Heard the learned Counsel. Perused the Judgments of both the Courts below. There is no dispute that the suit land belonged to Haribai, who was mother-in-law of the defendant No.1 and also now there is no dispute that Haribai had executed a gift deed dated 30.10.1964 in favour of the defendant no.1 in respect of the suit land. Both the Courts below held that the plaintiff had proved that the defendant No.1 had entered into an agreement dated 20.7.1972 to sell the suit land to the plaintiff for consideration of Rs.21,500/- and he had also received an amount of Rs.3,000/- as earnest money out of the said amount. Both the Courts below rejected the contention of the defendant No.1 that it was a loan transaction and that the agreement for sale was only a nominal, sham and bogus document and was not to be acted upon. Both the Courts came to conclusion that the plaintiff had failed to prove that he was cultivating the suit land as a tenant. According to the trial Court, the plaintiff had secured possession of the land 10 sometime in 1975 when the dispute arose before the Revenue Authorities and since then he is in possession. On the other hand, the appellate Court observed that even though the defendant No.1 had not confirmed the possession of the plaintiff over the suit land, he had actually delivered possession to the plaintiff at the time of the agreement for sale and thus according to the appellate Court, from the date of the agreement for sale, the plaintiff is in possession of the land. 8. The Appeal was admitted as per the order dated 23.1.1992 observing as follows :- "The substantial question of law involved in this Second appeal is whether the evidence on the record is correctly interpreted." Taking into consideration the concurrent findings of both the Courts below, I find that the following are the questions of law involved in the matter :- (i) Whether the Courts below committed error in holding that the plaintiff had failed to prove that he had always been ready and willing to perform his part of the contract ? 11 (ii) Whether the Courts below committed error in holding that the suit is barred by limitation inspite of the letters dated 20.7.1975 and 20.7.1977 written by defendant no.1 to the plaintiff, agreeing to execute the sale deed after obtaining necessary permission and in view of the fact that the defendant no.1 had failed to obtain permission from the Competent Authority for sale of the land ? 9. Exhibit 98 is the agreement for sale executed by the defendant No.1 in favour of the plaintiff. It is dated 20.7.1972. As per this agreement, the sale deed was to be executed by February, 1973 and the plaintiff was to bear the expenses for execution and registration of the sale deed. It is specifically provided that if the plaintiff would fail to execute sale deed, the amount of Rs.3,000/- paid as earnest money would be forfeited and the agreement for sale shall be deemed to have been cancelled. It further provided that if the defendant would avoid to execute the sale deed, the plaintiff could get the specific performance of the contract by approaching the Court and by paying the balance amount of consideration. 10. According to the plaintiff, he was always ready 12 and willing to perform his part of the contract to pay the balance amount of consideration and to get sale deed executed and for this purpose, he had repeatedly made requests to the defendant no.1. However, the defendant No.1 had not obtained necessary permission from the Collector for sale of the land and therefore, he was seeking extension of time. According to him, the two letters dated 20.7.1975 and 20.7.1977, Exhibits 116 and 117 respectively, sent by the defendant no.1 to the plaintiff would go to show that the plaintiff was always ready and willing to perform his part of the contract, but the defendant No.1 was seeking to extension of the time. In support of his contention, he examined himself and his two brothers Gurusidhappa and Shrimant. From the evidence, it may be noted that the plaintiff Chandrashekhar never personally approached the defendant No.1 nor there is any material to show that he had offered to pay balance amount and had requested the defendant NO.1 to execute the sale deed. As per his evidence, both the times, he had deputed his brother Shrimant to the defendant No.1 with such a request. According to Shrimant on both the occasions, the defendant No.1, his wife and other members of his family and one Khanapure were present in the house. He conveyed that message of the plaintiff to the defendant No.1 and the defendant No.1 requested for extension of 13 time because he wanted to obtain necessary permission from the Collector. According to Shrimant, on the request of the defendant No.1, said Khanapure scribed the letters on both the occasions and the defendant No.1 put his thumb mark. The letters were handed over to Shrimant, which he delivered to the plaintiff. It is material to note that Khanapure, who was said to be scribe of both the letters was not examined by the plaintiff. The plaintiff totally relied upon the evidence of Shrimant. It is true that merely because a witness happens to be a relative of the plaintiff, his evidence cannot be discarded on that ground. However, it is also well-settled position of law that when the best evidence is available but was suppressed and not brought before the Court, adverse inference can be drawn against the party who has suppressed that evidence. It is not the case of the plaintiff that Khanapure was not available. Khanapure was the only independent witness in the given circumstances, but he was not examined before the Court. In view of these circumstances, and in view of the fact that Shrimant claims to be representative of the plaintiff and also happens to be his brother, it must be held that he was an interested witness and therefore reliance could not be placed on his testimony alone. The trial Court noted that it could not be a coincident that both the times, when 14 these letters were allegedly executed, the date was 20th July and on both the occasions, same persons were present at the house of the defendant No.1. The presence of members of the family of defendant No.1 could not be doubted because the same persons were present in the house but the presence of Khanapure, who is not resident of that village, at the house of the defendant No.1 on both the occasions when Shrimant approached there, is a suspicious circumstance. Therefore also it was rather difficult to place reliance on the evidence of Shrimant alone. If the evidence of Shrimant is kept aside for a moment, there is no material to prove that the defendant No.1 had executed the said letters. 11. The defendant No.1 Sidhappa deposed that one Kashinath had been to his house and he had taken the defendant No.1 to a nearby temple and, there he had pressurised and forced the defendant No.1 to put his thumb marks on the blank papers and those blank papers might have been used for the purpose of creating those two letters. In any case, he contended that he had not put his thumb mark on any such letters. The learned Counsel for the plaintiff also contended that as per the admission of the defendant No.1, those were small papers, while the papers used for writing the letters 15 Exhibits 116 and 117 are the fullscape papers. He also contended that Kashinath was not examined by the defendant No.1 to support his claim and hence this story is liable to be reected. If the story of the defendant No.1. is true, Kashinath must be a man of confidence of the plaintiff and therefore it was impossible for the defendant No.1 to examine him as a witness. If really Kashinath had obtained his thumb mark forcibly, it is impossible for him to come before the Court and to depose that he had forcibly obtained thumb marks of the defendant No.1 on those papers. Therefore non-examination of Kashinath is not sufficient to reject the contention of defendant No.7. 12. It is further contended by the learned Counsel for the plaintiff-appellant that the period when the thumb marks were taken is inconsistent. As per the oral evidence of defendant N.1 Sidhappa, said Kashinath had obtained thumb marks about 21 months after the execution of the agreement Exhibit 98 which could be in March or April, 1974. On the other hand, on 7.5.1979, he had sent a notice to Kashinath as well as the plaintiff Chandrashekhar through Advocate, Mr. Racheti, wherein it was contended that those thumb marks were obtained on 29.4.1979. This notice was also replied by the 16 plaintiff on 11.5.1979 denying all the allegations and by that reply/notice, the plaintiff had called upon the defendant No.1 to execute sale deed and thereafter he filed the suit. The defendant No.1 is an illiterate person. There appears some inconsistency about the time when his thumb marks were allegedly obtained by Kashinath on blank paper. For a moment, even if the evidence of the defendant No.1 on this count is rejected, the burden lies on the plaintiff to prove that the defendant No.1 had, in fact, written such letters to him and sought extension of time. 13. On the basis of the alleged letters, the plaintiff wanted to prove that he was always ready and willing to perform his part of contract, but the defendant no.1 was seeking extension and therefore suit is within limitation. As pointed out above, the best witness available in the matter was Khanapure, who had allegedly scribed the document, but he was not examined. Shrimant appears to be an interested witness and at least he is not an independent witness. I have carefully perused the document Exhibits 116 and 117. On perusal of these two documents, I found striking similarities in them. Both the documents appear to have been written with the same ballpen and it appears that there was some defect in the point of the ballpen due to which some part of 17 the letters would appear to be faint while the remaining part would appear to be dark. If these two documents are carefully perused, it would appear that both the documents were written at the same time with same ballpen, on the similar paper and the same ink was used for putting thumb impressions on the same. In view of this also I find it difficult to place reliance on these two documents. 14. In both the letters Exhibits 116 and 117, it was mentioned that the defendant No.1 was trying to obtain permission of the Collector and after obtaining permission, he would execute sale deed. It is material to note that in the agreement for sale, there was no condition of obtaining permission of the Collector or any other competent authority for execution of the sale deed. Admittedly, this was not the land received by the defendant No.1 under the Tenancy Laws and therefore permission of the Collector was not required for sale of the land. The area of the suit land is 36 acres and 21 gunthas and whole of the land was to be sold. Therefore, it cannot be said that land was a fragment or that sale of the land would create fragment. Therefore, permission was also not required under the Prevention of Fragmentation and Consolidation of Holdings Act. The learned Counsel for the plaintiff/appellant could not 18 point out under which provision of law, permission of the Collector or any other competent authority was required for execution of the sale deed. In view of these circumstances, it must be held that there was no condition in the agreement for sale that the defendant No.1 would obtain permission from the Collector or any other competent authority for executing sale deed nor there was any such need under any law. If it is so, there was no reason for the defendant to extensino of time to execute sale deed on this ground. Therefore, the plaintiff was to offer the balance amount of consideration and to get sale deed executed. As stated earlier, as per the terms of the agreement, the plaintiff was to get the sale deed executed by paying the balance amount by February, 1973. It clearly mentions that if he fails to pay the amount and to get sale deed executed within stipulated time, the earnest money would be forfeited and the agreement for sale would stand cancelled. There is no material on record to show that the plaintiff had ever offered to pay amount or had requested defendant No.1 to execute sale deed within the stipulated period. He has totally relied upon the letters Exhibits 116 and 117,but those letters do not appear to be genuine and therefore, no reliance can be placed on them. The learned trial Court noted that Shrimant and Gursidhappa, brothers of the 19 plaintiff had deposed that they had money and they were ready to pay the amount to the plaintiff, however, their evidence is silent as to whether the plaintiff Chandrashekhar had ever demanded any amount from them for getting sale deed executed. The trial Court rightly noted that it is not sufficient to aver in the plaint about the readiness and willingness, but it is also necessary to prove the same. Taking into consideration the material on record, it is difficult to hold that the Courts below committed error in coming to the conclusion that the plaintiff had failed to prove his readiness and willingness to perform his part of the contract. 15. Coming to the question of limitation, as pointed out earlier, the period of execution of sale deed was fixed under the agreement. It could be executed till February, 1973. As per the provisions of article 54 of the Limitation Act, for specific performance of the contract, the period of limitation is 3 years and if the date for the performance of the contract is fixed, the period of limitation begins to run from that date and if no such date is fixed, from the date when the other party refused to execute the contract. In the present case, specific date is not fixed but the period is certainly fixed. On the basis of the said agreement, it could be said that the last date agreed for the purpose 20 of performance of the contract was 28.2.1973. Therefore, the period of limitation would begin to run from that date. Of course, if before expiry of the period of limitation, the defendant No.1