1 S.A.No.371/02 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.371 OF 2002. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 16.12.2010. 1. This is an appeal by the original defendant Nos.7 and 8. The plaintiff had filed a suit for specific performance of contract on the basis of agreement of sale dated 17.2.1964 executed by Arjun in favour of the plaintiff and also claimed perpetual injunction on the basis of possession. The trial Court came to the conclusion that Arjun executed agreement of sale in favour of the plaintiff. The trial Court also came to the conclusion that plaintiff was put in possession of the suit property, pursuant to the said agreement of sale but dismissed the suit on the ground that 2 S.A.No.371/02 the suit for specific performance is barred by limitation and that plaintiff failed to prove that he was ready and willing to perform his part of the contract. The plaintiff preferred an appeal. The appellate Court partly allowed the appeal. It dismissed the suit to the extent of specific performance as barred by limitation, however, granted the decree for perpetual injunction as the plaintiff is entitled to protect his possession U/s 53-A of the Transfer of Property Act. The defendants Nos.7 and 8 who are purchasers have filed the present Second Appeal. 2. Mr.Bhosale, learned counsel for the appellant strenuously contended that the plaintiff is not entitled for protection U/s 53-A of the T.P.Act. To buttress his submission, the learned counsel relied on the judgment of the Apex Court in the case of "Mohanlal (deceased) through his L.Rs. Kachru and others Vs. Mira Abdul Gaffar and another" AIR 1996 Supreme Court 910. The learned counsel further contended that the document of which the specific performance was sought itself has not 3 S.A.No.371/02 been produced in the Court and as such unless the contents are proved, the Court could not have passed a decree. Mr.Bhosale, learned counsel further submitted that the trial Court after considering the evidence had arrived at a positive finding that the plaintiff was not ready and willing to perform his part of the contract but the trial Court did not consider the evidence in that regard. According to him, the present appellants are bonafide purchasers of the suit property. 3. Per contra, Mr.Borulkar, learned counsel for the Respondent No.1 submitted that the plaintiff is not required to prove the agreement and that the possession was delivered pursuant to agreement in view of the finding of a Court of competent jurisdiction in a previous suit. Initially a suit was filed between the legal heirs that is sons and wife of defendant No.1 bearing RCS No.172/1977, wherein it was held by the Court that the present plaintiff has paid the total consideration amount. Also the agreement of sale was proved and the fact that the present plaintiff was inducted in possession pursuant to 4 S.A.No.371/02 the said agreement of sale was also proved. The said finding has become final. The finding on the said issue operates as a resjudicata. Mr.Borulkar, learned counsel as such supported the decree. 4. With the assistance of the learned counsel, I have gone through the judgments. The findings about the validity of the agreement, the execution of the agreement, the payment of total consideration amount and the fact that the present plaintiff was inducted in possession, pursuant to the agreement have been rendered in the earlier suit. The said issue was directly and substantially issue in the previous suit. As such the same would operate as a res-judicata within the meaning of Section 11 of the C.P.C. The trial Court has negatived the relief in favour of plaintiff for perpetual injunction on the ground that plaintiff could not prove his readiness and willingness. When it is a matter of record that the total consideration amount was paid, then there was nothing left for the plaintiff to perform. As such, the lower appellate Court has correctly arrived at the finding of readiness and 5 S.A.No.371/02 willingness. The judgment of the Apex Court in a case of "Mohanlal Lal (deceased) through his L.Rs. Kachru and others Vs. Mira Abdul Gaffar and another" referred supra can not be applied to the facts of the present case as in the case before the Apex Court, it was proved that the plaintiff was not ready and willing to perform his part of the contract and he also had taken a mutually destructive plea of adverse possession. In that context the Apex Court has held that the plaintiff therein is not entitled for protection U/s 53-A of the T.P.Act. In the present case, the ingredients required for protection U/s 53-A are complied by the plaintiff. In that light of the matter, the findings of the lower appellate Court can not be faulted with. Regarding the contention of Mr.Bhosale, learned counsel that defendant Nos.7 and 8 were not parties to the said suit and so the principle of resjudicata would not apply is not sustainable inasmuch as the defendant Nos.7 and 8 are transferees of other defendants who were parties to the said suit and they are claiming through said defendants. 6 S.A.No.371/02 5. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.16.12.2010. asp/office/sa371.02