* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1297 OF 2009 1. Mrs. Pramila Vilasbhai Shah .........Appellant/Orig.Plff V/S. 1. Shri. Vikas Deepchand Shah 2. The Merchants Association, Baramati, thru. Jaykumar Jivraj Shah (Wadujkar) ..........Resps/Orig.Defds -------------- Mr. S.M. Oak i/by. Mr. Sagar Joshi, adv.for appellant. Mr. A.P. Kulkarni, adv.for respondent. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 16TH DECEMBER, 2009. P.C. :- 1. The appellant who is the original plaintiff has filed this appeal to challenge the judgment and order dated 25th March 2009 passed by the Civil Judge Senior Division, Baramati in Special Civil Suit No. 34 of 2001. The respondents are the original defendants. Respondent no.1 is original defendant no.1. He is the brother in law of the appellant. He had not contested the suit and not participated in the trial in any manner. The suit was contested only by * 2 * respondent no.2, Merchant s Association, Baramati. The present appeal also is ’ contested only by respondent no.2. Considering the facts and circumstances of the case, the appeal is taken up for final hearing at the stage of admission. The records and proceedings are dispensed with. 2. I have heard the extensive arguments of both the sides. 3. Respondent no.1 was the owner of the suit property i.e. land at Survey No.851 to 856 with House No. 409D constructed thereon. By the registered sale- deed dated 20th June, 2001 he sold the suit property to respondent no.2- Association for the consideration of Rs.15,00,000/-. The appellant alleges that the sale-deed is illegal as it was got executed from respondent no.1 under pressure and threat. But, curiously she has not challenged the transaction of sale or sought any relief relating to the sale. 4. The appellant however claims a prior right to a portion of the house at the suit property and also claims to be in occupation of the portion. She contends that the land at Survey No. 851 to 856 was purchased by the joint family constituted of her husband, Vilas and his three brothers, Vijay, Vinod and Vikas i.e. respondent no.1 out of the income of joint family. As respondent no.1 was the youngest brother, the land was purchased in his name. Later, partition was effected in the year 1983-84 amongst the brothers in which it was agreed that the plot of land would go to the share of respondent no.1 and the house to be constructed thereon would be divided between respondent no.1 and his * 3 * brother Vilas. It was allegedly agreed that, respondent no.1 would occupy the ground floor as owner and Vilas was to occupy the first floor. Vilas was to get his share in the joint family property, by respondent no.1 transferring the first floor of the house in the name of the appellant, on payment of cost of construction of Rs.1,00,000/-. The appellant claims that accordingly she paid a sum of Rs. 1,00,000/- to respondent no.1 by cheque. On 6th August, 1984, respondent no.1 prepared the document of sale-deed, however, the same could not be executed for some reason. She further claims that she has been occupying the first floor of the house with her family and respondent no.1 has been occupying the ground floor. 5. On the above facts, the appellant sought a declaration that she is the owner of the first floor of House 409D and for a mandatory order directing respondents no.1 and 2 to execute sale-deed in her favour. She also sought a permanent injunction to restrain respondent no.2 from disturbing her possession of the first floor. 6. As mentioned earlier, the suit was contested by respondent no.2 alone. Respondent no.1 did not even appear before the court. Respondent no.2 contended that the suit filed by the appellant is not maintainable and is barred by the law of limitation. On merits, it denies the claim of the appellant including her occupation of the first floor. According to it, if all the appellant is occupying the first floor, it is only as a member of family of respondent no.1 * 4 * and not by way of any independent right. It further contended that since it has purchased the suit property by registered sale-deed, it is the owner of the same. Respondent no.2 further alleged that the suit filed is a collusive suit, filed for the purpose of getting back the suit property by defeating the transaction of sale. Respondent no.2 also filed its counter claim on 25th October, 2004 claiming possession of the suit property. The appellant, however, failed to file written statement to the counter claim. 7. The appellant examined her husband Vilas (P.W. No.1) and her brother-in- law Vinod (P.W. No.2) in support of her case. Respondent no.2 examined its office bearer, one Jaykumar Jivraj Shah. P.W. No.1 deposed that all the four brothers were carrying on business in the name of M/s. Deepchand Dharamchand Shah in partnership, which firm was dissolved in the year 1980. Thereafter, the brothers started their separate business. P.W. No.1 did not produce any document to support the existence of partnership firm. He stated baldly that respondent no.1 had purchased the suit land and constructed the house thereon, without stating particulars of the purchase and construction of the house. According to this witness, the brothers had seven to eight other landed properties in and around Pune and all of the properties were partitioned in the year 1980. There was no document of partition executed. Though he claimed to be residing on the suit property, he admitted that he owns a bungalow and other houses and that the names of his family do not appear in * 5 * the voters list at the address of the suit property. P.W. No.2, the other brother in his evidence claimed that the partnership firm of M/s. Deepchand Dharamchand Shah was established more than 75 years back with the four brothers and their father as its partners. According to him, the suit land was purchased by the father in the name of respondent no.1. In his evidence, he gave details of partition of the family property amongst the four brothers and the agreement allegedly executed by the appellant. He admitted in his cross-examination that he he had no documents to show that the four brothers were running any business jointly or that the suit land was purchased by the father. He could not remember the date on which his father died, but stated that at the time of partition the parents were alive and they were not any alloted any share in partition. He stated that he was not aware whether there was any pressure on respondent no.1 through respondent no.2 for the transaction of sale. But, he volunteered that after the sale-deed there was hot exchange amongst the brothers regarding the sale of the first floor and that later all the four brothers decided to file the present suit. One major inconsistency in the evidence of the two brothers is about purchase of the suit land. According to P.W. No.1, it was purchased by respondent no.1 whereas according to P.W. No.2 it was purchased by their father. 8. The trial court took note of the established facts that the partition amongst the brothers had taken place in the year 1980 and since then all the * 6 * brothers are seperate in mess and in property. They have been running their business seperately. The suit land at City Survey No.851 to 855 were purchased and the building constructed thereon in the year 1984. With partition having taken place in the year 1980-81, there was no question of purchasing the suit land out of income of joint family. Even if partition of the suit property as alleged were to be accepted for the sake of argument and under the partition agreement the first floor was to go the share of Vilas, there could be no question of consideration of Rs.1,00,000/- for it. 9. The trial court next took note that the appellant failed to enter into the witness box without any justifiable excuse. She also failed to give specific date of the alleged agreement of sale between her and respondent no.1. There was a bald statement made as regards payment of consideration of Rs.1,00,00/- to respondent no.1. Lastly, the appellant sought decree of specific performance without asking for the same. 10. All the above circumstances, led the trial court to opine that the suit was a collusive suit and the appellant was a proxy for respondent no.1. The suit had been filed to protect the interest of respondent no.1 who conspicuously remained absent in the proceedings. The opinion of the trial court is fully justified by the material on record. There could not have been any other conclusion drawn from the pleadings and the evidence led in support of the pleadings. Hence, the Appeal is dismissed.