1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.6 OF 2010 [Shri Purushottam Pusaji Gaikwad ..vs.. Shri Uddhav s/o Sadashiv Waghmare] WITH SECOND APPEAL NO.44 OF 2010 [Shri Gunvant Purushottam Gaikwad & one another ..vs.. Shri Purushottam Pusaji Gaikwad & one another Shri C.R. Sharma, advocate for appellant in F.A. No.6/2010 Shri N.A. Vyawahare, advocate for appellant in F.A. No.44/2010 Shri Vilas Waghmare, Advocate for respondent sole in F.A.6/2010 Shri Vilas Waghmare,Advocate for respondent no.2 in F.A.44/2010 ============================================= CORAM: SMT. VASANTI A NAIK, J. DATE:5TH APRIL, 2010 COMMON ORAL ORDER Since common question of facts arise for determination in these two second appeals, they are heard together and are decided by this common order. 2] One Uddhav who is the respondent in both the appeals had filed a suit for specific performance of contract against Purushottam. It was the case of Uddhav in Special Civil Suit No.196/1994 that respondent had agreed to sale the field property admeasuring 1.82 H.R. for a consideration of 2 Rs.35000/-. After the suit for specific performance of contract was filed by Uddhav against Purushottam in the year 1994, yet another suit was filed by the wife and two sons of Purushottam for partition and separate possession of their share in the same field property which was agreed to be sold by Purushottam to Uddhav. 3] Purushottam pleaded in Special Civil Suit No.196/1994 that he was not the sole owner of the suit property and his wife and his two sons who had filed the subsequent suit were also the owners of the suit property. Purushottam pleaded that the suit filed by Uddhav, for specific performance of contract was liable to be dismissed for non-joinder of necessary parties. 4] Both the courts held in the suit filed by Uddhav for specific performance of contract that Uddhav was ready and willing to perform his part of contract and the transaction was not a loan transaction as pleaded by Purushottam in his written statement. The courts concurrently held that Purushottam had been unsuccessful in proving that the agreement dated 7.10.1990 was a loan transaction and was not an agreement to sale the property. The courts further held that there was a partition between Purushottam and his brother in the year 1966-67 and Purushottam became owner of the suit property and the property stood mutated in the name of Purushottam alone at the time when the agreement of sale was executed. The courts further found that in a suit filed by one Tanabai the wife of brother of 3 Purushottam, Purushottam had filed a common written statement along with Uddhav who was a party to the suit and had admitted the execution of agreement to sale dated 7.10.1990. The courts held that in the facts of the case, it could not be said that the suit was bad for non-joinder of necessary parties i.e. the wife and sons of Purushottam as Purushottam was the owner of the property. It was also admitted by the parties that Uddhav was in possession of the property since the year 1983. 5] By relying on the judgment passed in Special Civil Suit No.196/1994, and after considering the evidence tendered by the parties in the suit filed by the wife and the two sons of Purushottam against Purushottam and Uddhav for partition, the courts dismissed the suit filed by the wife and sons of Purushottam. Both the courts held that the wife and sons of Purushottam had raised a false plea that Purushottam was squandering money and selling the suit properties for his vices like drinking, gambling etc. merely with a view to avoid the sale of property in favour of Uddhav. The courts held that the wife and sons of Purushottam failed to prove that Purushottam was addicted to vices and wanted to sale the property for fulfilling them. The courts also held that there were two other houses and 2 acres of land purchased by Purushottam during his life time and the wife and sons of Purushottam had not included those properties in the suit for partition. According to both the courts the decree passed in Special Civil Suit No.196/1994, was binding on the wife and sons of Purushottam as the plea raised by 4 Purushottam that the suit property was jointly owned by Purushottam, his wife and two sons was negatived by the courts in the suit for specific performance of contract. On reading of the judgment passed in both the suits, it is apparent that the wife and sons of Purushottam filed the suit for partition of the field property, merely with a view to avoid the execution of the sale deed of the suit property by Purushottam in favour of Uddhav. The findings recorded by both the courts are pure findings of facts. 6] The judgment reported in AIR 2008 SC 1490 and relied on by the counsel on both the sides, can not be made applicable to the facts of this case. 7] Hence both the appeals, one filed by Purushottam against Uddhav and the other filed by the wife and sons of Purushottam against Purushottam and Uddhav are hereby dismissed with no orders as to costs. JUDGE SMP