65-sa248-10.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 248 OF 2010 WITH C.A. N O. 611 OF 2010 IN S.A.248/2010 Shri Hiraman Vithoba Bhamare ....Appellant. Vs. Chindhulal Gopaldas Burad, since deceased through his legal heirs & representatives: 1. Mr. Sumatlal C. Burad & Ors. ....Respondents. --- Mr. Arun Palekar for the Appellant. Mr. R.S. Apte, Senior Counsel i/by A.A. Garge for the Respondent No.1. --- CORAM:- G.S. GODBOLE, J. DATED :- 10TH OCTOBER, 2011. P.C. : 1 Heard Mr. Palekar for the Appellant and Mr. R.S. Apte, Senior Advocate for the Respondents. 2 The original Plaintiff-Chindhulal G. Burad filed a suit for specific performance of agreement for sale dated 2nd September, 1974 in the court of learned C.J.S.D., Nashik which was decreed by the learned Jt. Civil 65-sa248-10.sxw 2 Judge, Senior Division, Nashik on 27.7.1981. The Defendant had filed W.S. below Exh. 17 and had thereafter filed additional written statement in which he had raised the defence that he was given liquor and that under the influence of the liquor some documents were got executed from him. He disputed the contents of the agreement for sale and payment of consideration of Rs. 6,400/- as mentioned in the agreement but admitted the payment of Rs. 23,400/- by way adjustment against money Decree passed against the Defendants. 3 It is necessary to note that after the aforesaid Decree, the original Defendant has filed First Appeal No. 105/1982 in this court which was subsequently transfered to the District Court and was numbered as Reg. Civil Appeal No. 91/2002 in the Court of learned Ad-hoc District Judge-3, Malegaon. The children of the Defendant and his wife filed RCS No. 133/1977 for partition and separate possession in which Decree has been passed by the learned C.J.J.D., Satana on 20.02.2008. Thereafter, the Regular Appeal No.91/2002 filed by the Defendant has been dismissed by the learned Adhoc District Judge by the impugned Judgment and Order dated 10.04.2008. Mr. Palekar submitted that the Trial Court and the District Court both have overlooked the additional W.S. filed by the 65-sa248-10.sxw 3 Appellant and hence, the findings recorded by the Courts are perverse. He also submitted that the Plaintiff in fact did not examine any of the attesting witnesses to the Agreement and hence, since the Appellant -Defendant had disputed the execution and contents of the agreement; there was no independent evidence regarding payment of Rs.6,400/-. It is further submitted that the subsequent event which was placed on record, namely, the Decree for possession and separate possession passed in the Civil Suit No. 133/1997 ought to have considered by the Appellate Court. 4 I have considered the said submissions. In so far as non- consideration of the amended written statement is concerned, it cannot be said that there is no application of mind by the Trial court and the District Court. It is no doubt true that by the subsequent written statement, the Defendant had raised all contentions about being intoxicated at the time of execution of the agreement and on that basis prayed for dismissal of the suit. However, the entire burden to prove this plea was solely on the Defendant and from the perusal of the deposition of the Defendant it is difficult to hold that the Defendant had proved this plea and has discharged the burden. The Trial Court and the Appellate Court have considered these aspects independently and have concurrently recorded a 65-sa248-10.sxw 4 finding of fact against the Appellant -Defendant. In so far plea regarding non -receipt of Rs. 6,400/- was concerned, it is no doubt very strange that after parting with the entire consideration, the Plaintiff did not insist on the execution of the sale deed. If it had been the defence of the Defendant that the nature of the transaction was a loan transaction then this factor would have become important. However, defence of fraud has been raised, the aforesaid circumstance of not getting the sale deed executed is of no consequence. In so far as third aspect is concerned, namely, whether the Defendant was alone exclusive owner of the suit premises, the Trial Court while answering the issue no.13 has clearly held that whatever share the Defendant’s son, children and wife may have in the property, the said share will not be affected by the Decree for specific performance in favour of the Plaintiff or against the Defendant and obviously the Decree will bind only the Defendant. In this context, the learned Judge of the Appellate Court has declined to consider that the Decree for partition has been passed against the Defendant. I find no infirmity in this order. The Decree which is passed by the Trial Court and confirmed by the Appellate Court would clearly bind only the share of the Defendant in the suit property and will obviously not bind other members of the family of the Defendant, who have got Decree for 65-sa248-10.sxw 5 partition in their favour. In these proceedings even by passing Decree against the Defendant or or by dismissal of the Appeal, none of the rights of the children and wife of the Defendant can be adversely affected and it is clarified accordingly. 5 No question of law arise in the Second Appeal. The Second Appeal is dismissed. In view of the dismissal of the Second Appeal itself, the Civil Application No. 611 of 2010 does not survive and the same is also dismissed. 6 At this stage, at the request of Mr. Palekar,Advocate, appearing for the Appellants it is directed that the impugned Judgment and Decree passed in the Special Civil Suit No. 173 of 1975 shall remain stayed for a period of 12 weeks, subject to the condition that the present Appellant will not create any third party interest. [G. S. GODBOLE, J.]