1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.740 OF 2005 1 Dilip Khandu Mistri (Shardul), age: 33 years, Occ: Trade, residing at Leela Complex, Agra Road, Dhule-424 001. 2 Sanjay Khandu Mistri (Shardul)), age: 31, Occ: Trade, residing at Leela Complex, Agra Road, Dhule 424 001. Appellants Versus 1 Smt.Jawanthai Jamnadas Thakkar, since deceased, through legal heirs: 2 Vijaykumar Jamnadas Thakkar, age: 48 years, Occ: Business, 3 Vinodkumar Jamnadas Thakkar, age: 42 years, Occ: Business; 4 Arvindkumar Jamnadas Thakkar, age: 40, Occ: Business,; 5 Smt.Shobhaben Dilipkumar Thakkar, age: 46, Occ: Household work; 6 Amit Dilipkumar Thakkar, age: 14, minor, Occ: Education, 7 Sumit Dilipkumar Thakkrar, age: 12, minor, Occ: Education; Nos.1 to 7, all resident of CTS No.1502, Bombay Lodge Building, Agra Road, Dhule – 424 001. Notice of Respondents No.6 & 7 be 2 served on their mother i.e. Guardian ad-litem, Respondent No.5 Smt. Shobhaben Dilipkumar Thakkr. 8 Sau.Saraswatiben Shantilal Chavan, age: 37 years, Occ: Household work and business, residing behind Nityanand Nagar, Near Natraj Talkies, Dhule. 9 Manoj Vallabhabhai Solanki, age: 30 years, Occ: Business, Resident of Sarvodaya Colony, Behind Swastik Theatre, Dhule. 10 Pundlik Badgujar, age: 37 years, Occ: Business, Resident of Lane No.12, Old Dhule, Dhule-424 001. 11 Dipak Ghuge, age: 32 years, Occ: Business, Resident of Vanjari Galli, Old Dhule, Dhule-424 001. 12 Mahadeo Manikrao Khopade, deceased, through L.Rs.: 12(A) Amol Mahadeo Khopade, age: 28 years, Occ: Business. 12(B) Kaushalyabai Mahadeo Khopde, age: 54 years, Occ: Household; 12(C) Shital Mahadeo Khopde, age: 23 years, Occ: Household; All R/o Jaishankar Colony, Chalisgaon Road, Dhule. 12(D) Sandhya Shashikant Patil, age: 35 years, Occ: Householdl, R/o Hedgewar Nagar, 3 Chalisgaon Road, Dhule. 12(E) Smita Suresh Patil, age: 32 years, Occ: Household, R/o Vishrantwadi Kasturba Housing Society, Tirupati Complex, Pune. 12(F) Sunita Hanumant Vibhute, age: 30 years, Occ: Household, R/o Jawahar Nagar, Near Urdu School, Ichalkaranji, District Kolhapur. 13 Mohamad Rafiq Sadiwala, age: 37 years, Occ: Business, Residing at City Survey No.1263, Agra Road, Dhule 424 001. Respondents Shri P.B.Patil, advocate for appellants. Mrs.C.S.Deshmukh, advocate for Respondents No. 2 to 7. Mr.Amol Sawant, advocate for Respondents No.12A to 12F. CORAM: R.M.BORDE, J. DATE : 05th August, 2009. P.C.: 1 This is an appeal by original defendants no.1 and 2 raising exception to the concurrent judgments delivered by both the Courts below. 2 Plaintiffs instituted suit against defendants claiming injunction and specific performance of the agreement. According to plaintiffs, suit premises is in their possession as tenants since the time of their forefather. The rent fixed was Rs. 100/- per month. Plaintiffs were carrying on business of grocery, oil and were also occupying the suit premises for their residence. Defendants No.1 and 2 purchased suit premises from one Jagannath Sadashiv Mukunde. Defendants wanted to construct commercial complex in place of old structure. Plaintiffs, as such, permitted defendants to carry out the construction on certain terms and 4 conditions. According to plaintiffs their right to continue as tenants was to remain intact and shop premises admeasuring 6 feet North-South and 18 feet East-West in the South-East corner was to be sold by defendants no.1 and 2 to the plaintiffs after constructing a shop. Defendants no.1 and 2 were also to construct basement below the above mentioned shop and that was also agreed to be sold to the plaintiffs. The consideration amount was settled at Rs.21,600/-, out of which, an amount of Rs.15,000/- was paid as earnest money. According to the plaintiffs, agreement was executed on 27.02.1988 and they advanced sum of Rs. 15,000/- on that day. Defendants have carried out the construction of shopping complex including basement. Plaintiffs were ready and willing to pay the balance of amount, however, it is learnt that defendants no.1 and 2 have let out the shop in favour of other defendants. Defendants no.1 and 2, thus, have not performed their part of contract and have committed breach of the agreement. Plaintiffs, as such, approached the Court and prayed for relief of specific performance of agreement as well as injunction. 3 Defendants No.1 and 2 appeared and resisted the suit by filing written statement. They have denied tenancy rights of plaintiffs in respect of entire property. The agreement in question, according to defendants, is fabricated one. According to defendants, agreed consideration was Rs.50,000/-, whereas, earnest money of Rs.15,000/- was paid. Defendants contend that some of the pages contained in the agreement have been replaced and there are overwritings in the agreement presented by plaintiffs. Defendants, as such, contend that plaintiffs are not entitled to seek relief on the basis of fabricated agreement to sale and prayed for dismissal of the suit. 4 The trial Court, on the basis of pleadings raised by the parties, framed issues and after recording evidence, has recorded a finding that the plaintiffs have established their case partially. The trial Court recorded a finding 5 that the plaintiffs have proved their possession over the suit premises as tenants along with Gulabsing Thakur. So far as agreement to sale is concerned, it has been recorded by the trial Court that the plaintiffs have established their case and as such, while allowing claim raised by the plaintiffs in respect of specific performance of agreement, trial Court has directed plaintiffs to deposit balance amount of consideration of Rs.6600/- and further directed defendants no.1 and 2 to execute the sale deed and put plaintiffs in possession of the property which is agreed to have been sold in their favour. 5 The judgment and decree passed by the trial Court was subjected to appeal at the instance of defendants, being Regular Civil Appeal No.11/1998. Plaintiffs have also presented Cross Appeal as regards part of the suit claim which was not accepted by the trial Court. The first appellate Court has upheld the findings of fact recorded by the trial Court. The first appellate Court, as such, dismissed both the appeals presented by plaintiffs as well as defendants. 6 I have heard arguments advanced by Shri P.B.Patil, learned Counsel for appellants and Mrs.C.S.Deshmukh, learned Counsel for Respondents No.2 to 7 and Shri Amol Sawant, learned Counsel for Respondents No.12A to 12F. 7 It is contended by learned Counsel for appellants that the agreement in question, on which reliance is placed by the Courts below, is forged and fabricated one and ought not to have been accepted as basis for passing the decree. According to him, some of the pages contained in the agreement appear to have inserted later on. There are also erasers and overwritings in the document. 8 Both the Courts below have considered the contentions raised by the defendants and deemed it fit not to accept the same. It is recorded by the 6 Courts below that the pages, which, according to the defendants, were inserted subsequently, bear initials of defendants. The trial Court has compared signatures of defendant no.1 appearing on the pages, which are part of the document, as well as his admitted signatures and has formed an opinion that the initials put by defendant appear to be similar with the initials put by him on other documents. Apart from this aspect, defendants have accepted receipt of consideration amount of Rs.15,000/- from the plaintiffs. Defendants have also admitted their signatures on the concluding page of the document. In these circumstances, the Courts below have recorded a finding of fact in respect of genuineness of the document. Defendants no.1 and 2, however, have failed to establish their contention that the document is forged one by leading cogent evidence in that behalf. The oral evidence led by plaintiffs also supports their case in respect of execution of agreement between the parties. Considering all these relevant circumstances, I am of the opinion that the findings of facts recorded by the Courts below, based on appreciation of evidence, need not be interfered with while dealing with the instant appeal. No substantial question of law arises for consideration in the appeal. Appeal is devoid of merits. 9 Second Appeal stands dismissed summarily. (R.M.BORDE) JUDGE ******* adb/sa74005