1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.938 OF 2007 Shri Pinalkumar Jasubhai Patel & Anr. : Appellants. Versus Smt.Jayashree Dhondopant Deshpande & ors. Respondents. Shri.G.S.Godbole with Shri A.P.Kulkarni for the Appellants. Shri. R.G.Ketkar for Respondent Nos.1 to 5. CORAM : R.M.SAVANT, J. DATED : July 30, 2008 P.C. 1. The facts involved in the above Appeal exemplify a dishonest attempt on the part of the Original Plaintiffs/Appellants to get a fraudulent claim adjudicated in a suit filed by them for specific performance and for protecing their alleged possession. 2. The above Second Appeal takes exception to the Judgment 2 and Decree dated 18.10.2007 passed by the learned Ad-hoc Additional District Judge-I, Baramati by which the Judgment and Decree dated 31.7.2006 passed by the trial Court i.e. the learned Civil Judge, Senior, Division, Baramati came to be confirmed and thereby the dismissal of the suit by the trial Court, which was filed by the Appellants/Plaintiffs, came to be affirmed. 3. The Appellants are the original Plaintiffs in Special Civil suit No.65 of 2002 filed by them for specific performance of an Agreement for Sale dated 10/6/1991 allegedly entered into between the Plaintiffs and Defendant No.1 through her power of attorney one Ramanlal Shah. It was the case of the Plaintiffs that Defendant No.1 had executed the said Agreement for Sale on 10/6/1991 on acceptance of earnest money of Rs.1,10,000/- against the consideration of Rs.1,40,000/-. The said Agreement for Sale was executed purportedly for defraying the litigation expenses which she was incurring in the litigation filed by her against her tenants. It was further the case of the Plaintiffs that on the same day she delivered the possession of the suit land to the Plaintiffs. The suit land is Block 3 No.25/1 (Old No.753), admeasuring 9 Hectors 01 R. with 10 acres standing sugarcane crops and 18 Gunthas vastipad (field house-cum- furrow land) of village Saratewaid, Tal.Indapur, Dist.Pune. It was the case of the Plaintiffs that they are sugarcane growers and that their names stand in the cultivation column of the record of rights. It was further the case of the Plaintiff that Defendant No.1 avoided seeking permission from the appropriate authorities so as to complete the transaction and, therefore, she had not abided by the said Agreement. 4. It was further the case of the Plaintiffs that the Defendant No.1 with an intention to deprive the Plaintiffs of the suit property had effected a sale deed in favour of Defendant Nos.2 to 5. It is the case of the Plaintiffs that the said sale deed is illegal and a nullity. Since the Defendants were bent upon to dispossess the Plaintiffs, that the Plaintiffs filed the said suit through their Power of Attorney Holders viz. One Ajay Toraskar and Pradip Jagdale inter-alia praying for a decree of specific performance for refund of part payment of Rs.1,10,000/- and Rs.30,000/- as compensation as well as for perpetual injunction in respect of possession. 4 5. The Defendant No.1 opposed the said suit by filing her written statement. The Defendant No.1 contended in the said written statement that she had authorised one Ramanlal Shah, the uncle of Plaintiffs to conduct the revenue litigation on her behalf against tenants Laxman and Dhondi Tobare. The said power of attorney allowed the Defendant No.1 to reside in his premises at Akluj. It is further contended on behalf of the Defendant No.1 that after compromising the revenue litigation in this Court, the Defendant No.1 became the owner of western portion of Survey No.753 after giving 9 acres of eastward side to one Tobare who was the tenant and the said Survey No.753 came to be subdivided as Survey Nos.753/1 and 753/2 and accordingly, the Defendant No.1 and said Tobare are in possession of their respective area and, that subsequently in 1995-96 after division of revenue village, it bears new Block No.25/1 and Block No.25/2 respectively. It was further contended by the Defendant No.1 in his written statement that she used to get her land cultivated through said Ramanlal Shah. The said Ramanlal Shah obtained her signature on various blank papers and stamps. It is further contended 5 by the Defendant No.1 that when she realised that the said Ramanlal Shah was bent upon grabbing her property she revoked the power of attorney executed in his favour by notice dated 21/2/2000 published in daily newspaper “Lokmat”, and that she lodged a police complaint against the said Ramanlal Shah. In view of this act on her part, the relations between her and the said Ramanlal Shah were strained. It was also contended by the Defendant No.1 that on 2/3/2000 she had executed a registered sale deed ;in favour of Vikram Ghule and Umaji – the Defendant No.2, who happens to be her son-in-law in respect of 8 H. 20 R. land for a period of 25 years and, they were to be put in possession of the said land on Gudhi Padava of the year 2002. Thereafter, the Defendant No.1 executed a sale deed in favour of the Defendant Nos.2 to 5 on 23/9/2002. It is further contended on behalf of the Defendant No.1 that the Plaintiff No.2 Binaben Jitubhai Patel was living in Amercia and the Plaintiff No.1 forged her signature on 24/2/2000 and made an application to village Talathi for entering the name in Cultivation column of the suit land. The said order of the Talathi came to be set aside by the S.D.O on the application made by 6 the Defendant Nos.2 to 5. It is further contended on behalf of the Defendant No.1 that Ramanlal Shah had taken undue advantage of the fudiciary relation with the Defendant No.1 and manipulated blank papers and stamps which he had got signed from the Defendant No.1, and that the Plaintiffs had executed a power of attorney in respect of two anti-social elements Ajay Toraskar and Pradip Jagdale to get the said suit land vacated. 6. The Defendant Nos.2, 4 and 5 also filed their written statement so also Defendant No.3 who adopted the defence taken by the Defendant No.1. 7. The parties went to trial. On the basis of the evidence that was on record, the trial Court held that the Agreement for Sale dated 10/6/1991 of which specific performance was sought for was not proved. The trial court further held that the said Ramanlal Shah had got executed a sham agreement under undue influence. The trial Court also held that Manjulaben who is the mother of Plaintiff No.2 had impersonated her in the said suit proceedings. This the trial Court held on the basis of electoral-roll and the other documentary evidence 7 which was produced by the Defendant No.1. The trial Court on the basis of the Judgment of a learned Single Judge of this Court reported in 2002(3) ALL MR 846 in the matter of Jiyaudding Muniroddin & ors v/s. Pradepkumar Baijnath Nawabasi held that a guardians contract for sale or purchase made on behalf of the minor is not enforceable by or against the minor. This was on the basis that the date of birth of the Plaintiff No.1 was 6.3.1997 and Plaintiff No.2 was 1.1.1973 and, therefore, on the date of Agreement for Sale dated 10.6.1991, both the Plaintiffs were minors. The trial Court also held that the entire transaction is suspicious as though the Agreement for Sale is allegedly dated 10.6./1991, the suit for specific performance was filed only in the year 2002 and in the intervening period of 10 years not a single notice etc was given by the Plaintiffs to the Defendant No.1. The trial Court observed that it was only after the Defendant No.1 had revoked the said power of attorney of Ramanlal Shah on 21.1.2000 that the suit came to be filed on 14.10.2002. The trial Court also observed that the suit was filed in the year 2002 after the change in name of the said Vinaben to Binaben was effected. 8 The trial Court also observed that the fact that the two power of attorney holders of the Plaintiffs viz. Ajay Toraskar and Pradip Jagdale being anti social elements, who had similarly taken power of attorney holders for some other persons, the intention of the Plaintiffs in engaging them viz for grabbing the property in question was eloquent. The trial court, therefore, dismissed the suit by imposing costs of Rs.5,000 on the Defendants. The trial court also held that the Defendant No.1 was always in possession of the suit property and merely because Ramanlal Shah was cultivating the suit land, it could not be held that the Defendant No.1 was not in possession of the suit property. The said Ramanlal was cultivating the said suit land as a power of attorney holder for the Defendant No.1 and, therefore, the possession of the said Ramanlal Shah was only as an agent of the Defendant No.1. The trial Court, therefore, dismissed the suit by its Judgment and Decree dated 31/7/2006. 8. Being aggrieved by the said Judgment and Decree dated 31/7/2006, the Plaintiffs filed Regular Civil appeal No.108 of 2006. 9 The Lower Appellate Court also considering the evidence recorded by the trial Court as regards the Agreement for Sale dated 10/6/1991, confirmed the finding of the trial Court that the said Agreement for Sale was not proved. The Lower Appellate Court also recorded a finding that Manjulaben has impersonated Plaintiff No.2 in the said suit and deposed as Plaintiff No.2 and, thereby the Lower Appellate Court confirmed the finding of the trial Court as regards the said impersonation. The Lower Appellate Court also confirmed the finding of the trial Court as regards the proposition of law that a guardians contract for sale or purchase made on behalf of the minor is not enforceable by or against the minor. The Lower Appellate Court also questioned the motive of the Plaintiffs in executing the power of attorney in favour of Ajay Toraskar and Pradip Jagdale and observed that the said power of attorney was executed by the Plaintiffs to some how to grab the property in question. In so far as possession is concerned, the Lower Appellate Court on the basis of long standing entries in the record of rights which were exhibited as Exhibits 147 and 148 from the year 1989-90 and 1998-99 as also the S.D.O.' s 10 order in favour of the Defendant Nos.2 to 5 held that the perpetual injunction in favour of the Plaintiffs against the Defendants could not be granted. The Lower Appellate Court, therefore, by its order dated 18/10/2007 dismissed the said R.C.A. No.108 of 2006. 9. Both the Courts below have, therefore, concurrently held against the Appellants/Plaintiffs as regards their claim for specific performance. 10. It is sought to be contended on behalf of the Appellants that the finding of the Courts below as regards undue influence exercised by Ramanlal Shah over the Defendant No.1 as also on the point of possession are perverse. The learned advocate for the Appellants tried to buttress his submission by drawing my attention to the evidence of Defendant No.1 as also to an order passed at an interlocutory stage by this Court in A.O. No.773 of 2006 in respect of the possession of the Plaintiffs. The learned Counsel for the Appellants relied upon the judgment of the Apex court reported in (2006) 5 SCC 545 Hero Vinoth (Minor) v/s. Seshammal in support of 11 his submission that in case material which ought to be considered by the Courts below is not considered it gives rise to a substantial question of law. Relying upon the said Judgment, the learned counsel for the Appellants submitted that the above Second Appeal is required to be admitted on the said point. 11. Per contra the learned counsel for the Respondent Nos.1 to 5 submitted that the proceedings filed by the Plaintiffs are an abuse of the process of law and vexatious. The learned counsel drew my attention to the various documents in support of his submission that a false suit was filed on behalf of the Plaintiffs on the basis of a power of attorney. The learned counsel for the Respondents also drew my attention to the fact that the age of both the Plaintiffs has not been mentioned and has been deliberately not done so for obvious reasons as the Plaintiffs were minors on the date when the alleged agreement was entered into. The learned counsel for the Defendant No.1 also drew my attention to the averments made in the Plaint especially the alleged payment made to the Defendant No.1 in support of his submission that the Agreement was sham and bogus. The learned 12 counsel for the Respondents also drew my attention to the record to support the finding that Manjulaben has in fact impersonated the Plaintiff No.2 and the endeavours made on behalf of the Plaintiffs to conceal the said fact. 12. Considering the submissions made and the documents which are on record, in my view, the concurrent findings of both the Courts below on the aforesaid issues cannot be faulted with. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. 13. In view of the dismissal of the Second Appeal, the Civil Application No.1674 of 2007 does not survive and the same is disposed of as such. [R.M.SAVANT, J.]