1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 130 OF 1988 Haji Begum D/o Sayed Tajuddin, Age : 40 Years, Occu. : Household, R/o Gadipura, Nanded. .. .. APPELLANT VERSUS Jani Begum W/o M. Hussain, Age : 60 Years, Occu. : Household, (Deceased through her L.R.s) A) Mahmood Hussain S/o Mohd. Hussain, Age : 50 Years, Occu. : Business, B) Gaffar Hussain S/o Mohd. Hussain, C) Ajiz Hussain S/o Sk. Mohd. Hussain, Age : 35 Years, D) Akhater S/o Mohd. Hussain, Age : 35 Years, E) Eftaquat Hussain S/o Mohd. Hussain, Age : 28 Years. .. .. Respondents Shri K. G. Khadar, Advocate for the Appellant. Shri B. B. Lakhakar, Advocate for the Respondents ­ absent. WITH SECOND APPEAL NO. 238 OF 1989 Smt. Jani Begum wd/o Mohd. Hussain Since deceased through her legal representatives 2 1. Mehmood Hussain S/o Mohd. Hussain, 2) Gaffar Hussain S/o Mohd. Hussain, 3) Ezaj Hussain S/o Mohd. Hussain, 4) Akhatar Hussain S/o Mohd. Hussain, 5) Istekhar Hussain S/o Mohd. Hussain, All Major, residing at Gadipura, Nanded. .. .. APPELLANTS VERSUS Smt. Haji Begum D/o Sayed Tajuddin.. .. RESPONDENT Shri B. B. Lakhakar, Advocate for the Appellants ­ absent. Shri K. G. Khadar, Advocate for the Respondent. CORAM : N. D. DESHPANDE, J. DATE ON WHICH JUDGMENT RESERVED : 19.12.2009 DATE ON WHICH JUDGMENT PRONOUNCED : 11.01.2010 JUDGMENT : 01. Heard Shri K. G. Khadar, learned counsel for the appellant in Second Appeal No. 130/1988 and also in cross appeal bearing Second Appeal No. 238/1989, which is tagged together for final hearing being cross appeals directed against impugned judgment and order dated 11.12.1987 passed in Regular Civil Appeal No. 236/1983 passed by learned Second Additional District Judge, 3 Nanded. 02. None appeared for the respondents in Second Appeal No. 130/1988 and for the appellants in Second Appeal No. 238/1989. 03. The appellant Haji Begum D/o Sayed Tajoddin, is the original plaintiff in Regular Civil Suit No. 202/1981. She filed a suit for specific performance of contract of sale in respect of suit house bearing Municipal No. 4.6.198 situated at Gadipura area at Nanded belonging to the defendant who agreed to sale for Rs. 17,000/­ on 14th April, 1978 and received Rs. 13,275/­ from the plaintiff as earnest money and also put plaintiff in possession of the suit house. Accordingly a document agreement to sale was executed in favour of the plaintiff/appellant. However, defendant refused to execute sale deed in her favour despite plaintiff offered to pay the balance amount of Rs. 3,725/­. Therefore, plaintiff issued notice to the defendant through her counsel on 04th Feb., 1981 to execute the sale deed. On failure to execute the sale deed, plaintiff filed a suit for specific performance of contract. 04. The defendant by written statement denied the contention of plaintiff on the ground that the suit house was owned by her husband and it was given to plaintiff on rent. The said document executed was a security for Rs. 1,300/­ which was to be adjusted in rent. It was never agreed to sell and denied execution of the agreement to sale. It is a sham and bogus document and prayed for dismissal of suit with compensatory cost of Rs. 1,000/­. 4 04. The plaintiff's suit was decreed with costs by the learned Trial Court by judgment and decree dated 3oth July, 1983 passed by Joint Civil Judge Junior Division, Nanded. The plaintiff was directed to deposit a sum of Rs. 3,725/­ within 15 days from the date of order. On failure to deposit the amount, the suit stand dismissed. It was further directed that on failure by defendant to execute the same within a period of two months from the date of the order, the same shall be executed through the Court, through commissioner to be appointed on depositing commissioner fees of Rs. 75/­ and necessary charges towards the execution of sale deed by the plaintiff. 05. The defendant preferred First Appeal bearing Regular Civil Appeal No. 238/1983 against the impugned judgment and decree passed by the Trial Court dated 30th July, 1983, which was heard by Second Additional District Judge Nanded. The First Appeal is partly allowed. It is impugned judgment in the second appeal. The First Appellate Court was pleased to dismiss the plaintiff's claim for specific performance of contract for sale of the suit house and instead for recovery of Rs. 13,275/­ from the defendant. The said judgment of the First Appellate Court is also impugned by the defendant by separate appeal bearing Second Appeal No. 238/1989, which is a cross appeal referred above, even for order of refund or recovery of Rs. 13,275/­ directed against the defendant. According to the defendant the impugned judgment of the First Appellate Court for directing the recovery of the earnest money and that of learned Trial Court for specific performance are bad in law, as there was no contract of sale between the parties and she had not received any earnest amount as alleged by the plaintiff. 5 06. In the light of above controversy, I have gone through both the judgments passed by the Courts below. Thus, it is seen that there are concurrent findings recorded by both the Courts below in favour of plaintiff having proved the agreement to sale the suit house for the consideration of Rs. 17,000/­ under deed of agreement dated 14.04.1978 and findings were also recorded in negative on the issue of practicing fraud and misrepresentation in the matter of execution of the said agreement against the defendant. 07. It is admitted that, the plaintiff is in possession of the suit house and the agreement was executed by the defendant. It is also observed that defendant was given the suit house in Mehar. As such, the controversy about the title of the defendant and her ownership is held proved on record and as such, the impugned agreement of sale or contract cannot be said to be null and void in the light of the findings of the impugned judgment of the First Appellate Court rejecting defendant's case of fraud and misrepresentation, so also a document as security for amount of Rs. 1,300/­ has been discarded. 08. The learned Trial Court also while decreeing the suit for specific performance recorded all relevant issues No. 1 to 5 in favour of the plaintiff and disbelieved the case of the defendant of tenancy and of alleged fraud while executing the said document for nominal consideration of Rs. 1,300/­ as received as advance rent. As the plaintiff is found in possession and continued to be in possession since long after payment of earnest amount of Rs. 13,275/­ out of total consideration of Rs. 17,000/­, his claim for specific 6 performance which was rightly decreed by the learned Trial Court by judgment and order dated 30.07.1987 which decree deserves to be maintained. Moreover, the defendant did not agree to refund the earnest amount and having failed to return the same, plaintiff's present appeal for specific performance of sale agreement deserves to be allowed. 09. In the light of above observations the impugned judgment and order of First Appellate Court dated 11.12.1987 of dismissing the specific performance of contract cannot sustain in law. The appellant/plaintiff has proved his case for specific performance for sale of suit house and she is entitled to the same as per the judgment and decree passed by the learned Trial Court dated 30.07.1983. Thus the present Second Appeal No. 130/1988 of the original plaintiff is hereby allowed. Hence the following order : 01. The Second Appeal No. 130/1988 is allowed with cost. 02. In the light of observations and reasons given above, judgment passed in Second Appeal No. 130/1988, the defendant's cross appeal bearing Second Appeal No. 238/1989 stands dismissed by this common judgment. Both the second appeals are disposed of accordingly. [ N. D. DESHPANDE, J.] bsb/Jan. 2010