1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 95 OF 2009 1. Chandrakant Janabai W/o Ajabrao Patil Age 50 years, Occupation - Agriculture, R/o Naware, Tq. Yawal, Dist. Jalgaon. 2. Janabai w/o Ajabrao Patil, Age 50 years, Occ. Household, R/o Quarter No.103/2, type L.M.K./2, Near Chakki, A/p Warangaon Factory, Tq. Bhusawal, Dist. Jalgaon. 3. Shivaji s/o Ajabrao Patil, Age 30 years, Occ. Household, R/o Quarter No.103/2, type L.M.K./2 Near Chakki, A/p Warangon Factory, Tq. Bhusawal, Dist. Jalgaon. 4. Sow. Sangita Pundalik Patil, Age 25 years, Occ. Household. R/o Hadsan Pahan, Tq. Pachora, Dist Jalgaon. 5. Smt. Sumanbai Fulsing Patil, Age 50 years, Occ. Household. R/o Bhavsa, Tq. & Dist. Barhanpur (M.P.) 6. Smt. Yamunabai w/o Bapu Patil, Age 45 years, Occ. Household, Shivajinagar, Tq. Yawal, Dist. Jalgaon. ...APPELLANTS V E R S U S 1. Hiralal Sukhlal Patil, Age 45 years, Occ. Agriculture, R/o Virawali, Tq. Yawal, Dist. Jalgaon. 2. Dharamsingh Julalsing Patil, Age 52 Occ. Agriculture, R/o Mohadi Post Shalave, Tq. Parola, Dist. Jalgaon. 3. Sow Ahilyabai Abhiman Patil, Age 43 years, Occ. Household, R/o Obhavali, Tq. & Dist. Surat. 2 at present Wadodi, Post Wirawari, Tq. Yawal, Dist. Jalgaon. ...RESPONDENTS Shri Milind Patil, Advocate for the Appellants. Shri P.S.Shendurnikar Adv. h/f Shri S.B. Yawalkar, Advocate for the Respondent Nos.1 Shri G.V. Wani, Advocate for the Respondent No.2. CORAM : K.U. CHANDIWAL,J. DATE : 04/03/2010 JUDGMENT:- 1) Heard finally. Admit. Record and proceedings perused by the contesting parties, paper book tendered. 2) The Judgment and decree in Special Civil Suit No. 106/2004 dated 20/9/2008 is questioned by Defendant No.2. The Plaintiff Hiralal filed suit against his vendor Dharamsingh for specific performance of agreement to sale dated 14/6/2002 which was registered before the competent authorities, leading to sale of 3 Hector and 9 R of the property from land Survey No. 94/2, totally admeasuring 5 Hector 51 Aar, to the extent of northern portion thereof, for Rs. 2,71,000/-. At agreement of sale Rs. 2,61,000/- was paid, and the balance was to be paid at the time of execution of sale deed before the Sub-Registrar. The transaction was to be completed after the vendor getting property released, seeking proper permission from the competent authority within a period of 2 months. Non compliance of the terms of said agreement of sale made the plaintiff to file suit 3 for specific performance which the learned judge decreed. 3) It is matter of record that the present appellants (original Defendant No.2 to 8) had filed Regular Civil Suit No. 24/02 against vendor Dharamsing concerning and including the suit property, with a clamp of injunction not to alienate the same and for partition, for declaration that it is a joint property. There operates injunction against vendor Dharamsing and plaintiff to alienate the suit property. It is not challenged or varied by any competent Court. 4) Mr. Patil bluntly criticised the judgment of the learned C.J.S.D. in Special Civil Suit No.107/2004, asserting, there could not a decree, which is against settled principles of law. The court has no powers in terms of Section 54 of the Civil Procedure Code to direct such division of Agricultural property. A false suit is filed to defy the share of the defendants and fake transfer of property is virtually effected. Mr. Patil submits that there was no collusiveness in the defence and the Vendor Dharamsingh, still the court had observed and rather was honest with such impression of the collusiveness between the present appellant and said Dharamsing. 5) The learned counsel has taken recourse to the judgment in the matter of (1) AIR 1998 S.C. 2216 (Ganesh Shet 4 Vs. C.S.G.K.Setty). This deals with variance in pleadings and in evidence. (2) AIR 2001 S.C. 2783 (A.C.Arulappan Vs. Ahalya Naik. Lordships of the Apex Court discussed the scope, applicability and exercise of discretion in terms of Section 20 of the Specific Relief Act. (3) 2002 (5) JT 357 (Veluyudhan Sathyadas Vs.Govindan Dakshyani), (4) AIR 2008 S.C. 1786 (Bal Krishna & Anr. Vs. Bhagwan Das(Dead) by Lrs. & Ors), (5) AIR 2008 S.C. 1267 (B.K.Sri Harsha (D) By L.R.& Anr.Vs.Bharath Heavy Electricals Ltd.) The Apex Court explained the legal position, in the light of judgment rendered in Rajeshwari V/s Puran Indoria [2005 (7) SCC 60] in para 5 as under; "5. Normally, a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the 5 evidence in the case in the light of the surrounding circumstances." 6) 1993 (1) S.C.C. 531 (Rameshwar Dayal Vs. Banda). The Apex Court has defined what is judgment. (7) 1969 (1) SCC 709 (Swaran Lata Ghosh Vs. H.K.Banerjee), the Apex Court has taken recourse to Section 2(2) and 33 of C.P.C. to distinguish judgment and decree, to be supported by cogent reasons. It was observed that the judgment should be reasoned wherein substantial question of law and pleading of the parties is concerned. It is not desirable to pass judgment without giving reasons. It was observed that deciding the matter in dispute unsupported by reason is not judgment at all in the eye of law. (8) 2008 (6) Bomb. C.R. 263 (Eknathbuwa Ghyanoba Bharati & Ors. Vs.Sheshabai Laxman Buwa (abated) & Ors.), conceives of Section 54 of Code of Civil Procedure in relation to partition of the property, this court has observed that in the absence of case of previous partition and determination of shares or identification of portion of their shares, the delivery of possession is unacceptable which needs to be modified. It was a suit for partition, however, without a decree for partition, the learned Judge directed delivery of possession as per shares. (9) 2000(2) Bombay C.R. 32 (Indrayani Paper Products Pvt.Ltd. Vs.National Insurance Co.Ltd. & Ors.) deal with Civil Court's jurisdiction, to reopen the partition of land necessarily should be collected. The reopening by the Civil 6 Court and directing the possession to be given afresh which resulted in certain demolition and alteration, it was observed by the Learned President, Consumer Forum that Civil Court can only determine the share of each but actual possession was done by the Collector could not be disturbed by it. (10) 1971 BCI (0)76 (Keshao Raghunath Deosant and Ors. Vs. Waman Keshao Deosani and Anr.) on the identical lines. 6) There cannot be and should not be quarrel on the proposition of law as enunciated in the above referred judgment, however, each case projects its own factual matrix with potentials, while facts of the present case demonstrate something else than what could have been legal position illustrated under Section 20 of Specific Relief Act, illustrated by the Apex Court in earlier referred judgments. It is well settled, Sec. 54 read with order 20 Rule 18 C.P.C. authorises the Civil Court, only to declare the rights of the parties interested in the property and place the execution of decree to the Collector, who has to evaluate, how the feasible partition is to be effected. The Civil Court's jurisdiction comes to an end after it declares the shares of parties. 7) Before the learned Judge the Vendor Dharamsingh did not participate except filing written statement. Witness Chandrakant the appellant herein on behalf of other defendants in unequivocal terms ( at page 69 of the paper book) 7 illustrated that the Defendants will not examine either Dharamsingh or any other person. It is more than clear, the appellant Chandrakant while initiating R.C.S.NO.24/02 before C.J.J.D. Yawal was aware of the agreement to sale dated 14/06/2002 executed by Dharamsingh in favour of the plaintiff. In spite of such knowledge cunningly he filed R.C.S.NO.24/2002 without seeking relief of partition or about the non- entitlement of Dharamsingh to execute any document or enter in any transaction. 8) It was suggested, that the agreement to sale executed by Dharamsingh was under influence of liquor. This is simply absurd. There is nothing to demonstrate by either Chandrakant or by any coherent evidence to disclose that Dharamsingh had any vices. The agreement was executed and registered before Sub-Registrar, who, would legally not allow entertain any flip and friction to the law. There was admission by Dharamsingh before the Registrar. The conduct of the appellants more lean to indicate, they allowed a situation for Dharamsingh to execute agreement to sale to third party, then conveniently raise objection and ensure that such transaction is either cancelled, earnest is swindled, or the purchaser is harassed. This has been provenly done by appellant to a Vendee Ramesh, confirmed in cross-examination by Chandrakant. 9) The contentions that there was no distinct area 8 defining the share of Dharamsingh to execute the agreement to sale of 3 Hector and 9 Aar is difficult to digest as Dharamsingh openly to the knowledge of the appellant herein has in past raised loan from Credit Co-operative Society creating charge of Society, to the extent of his share in the said property. That apart it has been distinctly accepted in the evidence that Dharamsing is carrying his agricultural operation in northern part from the land, which is subject of agreement to sale. Had there been any jointness in the property, the distinct separate user by either Dharamsingh or Chandrakant or others could not have been reflected in the evidence. 10) The original agreement to sale dated 14th June, 2002 is at Exhibit 44. The erasers at certain places, are initialed by the respective parties which inhibits doubts. One of the contention of Mr. Patil was the property under sale is a irrigated it has a high potential. Consequently, the determination of share to the extent of 3 Hector and 9 Aar of Dharamsingh was not possible. He had no exclusive rights to deal with specified area. This is certainly betrayal to the record, as 7 x 12 extract produced before the learned Judge, discloses that it is not irrigated. The revenue record does not indicate existence of any well or getting water from any outside source or project or tank or dam. Thus the property referred in the document is non-irrigated/jirayat. However, in written statement Exh.24 by Defendant Nos. 2 to 7 (Appellant) 9 in paragraph 17, the distinct arrangement of cultivation between the parties is highlighted. Dharamsingh, was thus cultivating Northern portion of 2 Hectors from Gut No.94/2. 11) The collusion between the appellant and Dharamsingh is also reflected by another circumstance. The plaintiff issued a notice to Dharamsingh for executing sale deed (Exh.61). It was replied at Exh.82, by the very counsel who represents the present appellant before the learned Judge in which proceeding there was no justifiable answer from the defendant for getting the reply to the notice from their Advocate. This distract and distress the contentions of the legitimate claim as they are to be accelerated by the present appellant. 12) The learned Judge should have dealt with effects of injunction flowing in R.C.S.NO.24/2002 recorded by learned C.J.S.D. Yawal, which was prevailing at the time of evidence/judgment in the Special Civil Suit. Injunction in said proceedings will have to be dealt with by parties i.e. plaintiff and his vendor Dharamsingh. 13) The sale transaction required a permission from competent authority. This has been well knit discussed by the learned Judge followed in operative part of the judgment, which also takes care directing Dharamsingh to get proper permission 10 from competent authority within 2 months. It is not established, Dharamsingh could not get 3 Hector 9 Aar of the property, to deal with plaintiff. Dharamsingh had share to the extent of 3 Hector 9 Aar in the property, which he legally had agreed to sale by agreement of sale. 14) Mr. Patil submits, that a prayer for partition was sought in the Special Civil Suit No.107/2004, the learned Judge did not exercise same and consequently, according to him, the grant of decree will be a nullity. I doubt the same. Mr. Patil contended, it was a collusiveness of action between Dharamsingh and Plaintiff, as Dharamsingh had accepted in his pleading about the execution of agreement to sale. This is again illusory. The acceptance of transaction, factual details clamp such unification to Dharamsingh and Appellant, those being a factual matrix, will not tantamount to project Dharamsingh's positive assertion in favour of the plaintiff. Had it been a collusive exercise, Vendor/Dharamsingh could have very well acted in compliance of notice Exhibit 61 issued by the Plaintiff, instead of replying and denying the transaction by reply Exhibit 81. 15) The agreement to sale refers to western portion of 3 Hector and 9 Aar, however, the plaintiff in his evidence has clarified, it is northern portion, it was so understood by Dharamsingh and Plaintiff. Since Dharamsingh has in his 11 pleading not disputed about the contentions raised and agitated by plaintiff concerning sale of northern portion, it is not open to appellant to castigate the same. 16) In a action for specific performance, the Plaintiffs readiness and willingness has emerged by parting huge amount and issuing notice. Even, no suggestion given to Plaintiff at any point of time, he was avoiding the transaction. The denial by Vendor forced him to seek redressal in court. The defendant No.2 to 7 did not approach with clean hands. They are even opposing Deft. No.1 Dharamsingh executing sale deed to the extent of his share, without any rational, just reasons. Chandrakant in his affidavit in Chief examination submits the property is ancestral and there is no partition by metes and bounds between Dharamsingh (Deft. No.1) and Nababai or Shobhabai. 17) Taking survey of entire evidence and legal position, there was no error on the part of the learned Judge in decreeing the suit for specific performance in favour of the plaintiff. The appeal sans merit it is accordingly dismissed. No costs. Civil Applications disposed of ( K.U.CHANDIWAL ) JUDGE cmg/fa9509