1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 848 OF 2002 1. Shri Badrinarayan Bholaram Dave ) Age about : occupation. Busiiness ) Died on 31.3.1992, repreented through ) L.Rs. : ) A) Smt. Anandibai Badrinarayan Dave ) Age about: 50 years Occu: Household, ) residing at 2, Sukrawar Peth, Pune-2. ) B) Vilas Badrinarayan Dave ) Age about 27 years, Occu: Busiess ) Resident of : as above. ) C) Dinesh Badrinarayan Dave ) Age about 21 years, Occu: Business, ) Resident of :as above. ) 2) Shri Mohan Badrinarayan Dave ) Age about 37 years, Occu: Business, ) Both are residing at : 40, Shukrawar Peth, ) Pune 411 002. )..Appellants Vs. 1) Smt. Radhabai @ Mahebibi Chandhusen ) Sayyed, Age about: 65 years, Occu: ) Household, Residing at: 296, Budhwar ) Peth, Pune-2. ) 2) Chandbi Mahebubi Sayyed, ) @ Chandbi Issak Sayyed, Age about ` ) 31 years, Occu: Household, R/at ) 407, Budhwar Peth, Pune – 2. ) 3) Moulabi Mahebubi Sayyad, ) 2 @ Sou. Sayra Kamaruddin Sayyad, ) Age about 25 years, Occu: Household, ) R/o Balajinagar, Pune-9. ) 4) Shri Kadar Shaikh ) Age about 45 years, Occu: Nil. ) 5) Smt. Sitabai Kamble )R.5 deleted 6) Kamalabai Maruti Chavan )R-6 deleted 7) Smt. Malabai Shivappa Kamble ) Age about 40 years, Occu: Nil. ) Resident of Respondents Nos. 4 to 7 ) are residing at : 296, Budhwar Peth, ) Pune – 2. )..Respondents Mr. A.M.Joshi, Advocate, for the appellants. Mr. S.S.Hardikar, advocate, for the respondent Nos. 2 & 3. CORAM: J.H.BHATIA,J. DATE: 4th August, 2009. JUDGMENT: 1. Heard the learned Counsel for the appellants as well as the learned counsel for the respondent Nos. 2 and 3. 2. To state in brief, Regular Civil Suit No.1121 of 1987 was filed for declaration of title and perpetual injunction by plaintiff NO.1 – Radhabai @ Mahebibi and her two daughters who are the respondent Nos. 2 and 3 before this Court. The plaintiffs claimed to be owners of the suit house bearing No.296 3 situate at Budhwar Peth, Pune. Defendant nos. 3 to 6 were the tenants in some portion of that house. According to the plaintiffs, the defendant Nos. 1 and 2, being goondas of that area, were forcibly trying to extort rent of the premises from the tenants. It was contended that the plaintiff No.1, being originally from Karnataka, did not know Marathi language. She entered in the profession of prostitution and defendant No.1 used to harass her and finally they joined hands, but they were not married. Plaintiff Nos. 2 and 3 were born and defendant No.1 lent his name as their father. The Plaintiff No.1 had purchased the suit property from her own income and she was the owner of the said property. Taking undue advantage of her illiteracy, the defendant No.1 got some documents executed from the plaintiff No.1 and tried to misuse them. 3. Defendant Nos. 1 and 2 contested the suit. According to them, defendant No.1 purchased the suit property in 1972 and there was an agreement in respect of partition of the suit property between the plaintiff no.1 and her daughters on one hand and defendant No.1 and his family members on the other and this property has been partitioned and a portion of the house is owned and possessed by the defendant No.1. 4. The trial Court rejected the contention of the defendant and decreed 4 the suit. Defendant Nos. 1 and 2 preferred Civil Appeal No.90 of 1992. That appeal also came to be dismissed. Hence, the Second Appeal. 5. Admittedly, the property was purchased in the name of the plaintiff No.1 under a registered sale deed of 1978. There is nothing to show that the defendant No.1 was a co-owner in the said property. The learned Counsel for the appellant tried to contend that the defendant No.1 had contributed for the construction of second and third floors of the building purchased in 1978. According to him, on 2.10.1985, a document was executed by the parties whereby some portion of the property was given to the plaintiff Nos.1 to 3 and some portion was given to the defendant No.1 and his wife and daughter-in-law. 6. On hearing the learned Counsel for the appellant and perusal of the documents, it is clear that the plaintiff No.1 is a registered owner of the suit property. She was admittedly a prostitute and out of that income she could purchase that property. Defendant No.1 was her customer. Even though he had lent his name as father of the two daughters of the defendant No.1, admittedly, they were not married and, therefore, they could not be called members of the family. Even if some amount was contributed by the defendant No.1, for the purpose of construction of second and third floors, that could be the 5 consideration for the physical services provided by her to him as a customer. The document dated 2.10.1985 is not a registered document. The partition deed has to be a registered document. If it is treaded as memorandum of partition, it is to be first established that there was some property owned by the parties jointly or as co-owners and that property was partitioned. There is nothing on record to show that the suit property was owned by the plaintiff No.1 and defendant No.1 as joint owners or co-owners. The learned Counsel for the appellant contended that in view of the contribution made by the defendant No.1, the document dated 2.10.1985 may be treated as an agreement for sale and the defendant No..1 is entitled to retain the possession under Section 53A of the Transfer of Property Act. I find no substance in this contention. No such plea was taken in written sttement. The said document nowhere indicates that there was an agreement for sale or that the defendant no.1 was put in possession of the property under an agreement for sale. Naturally, the agreement for sale requires the terms of the contract like consideration, payment of earnest money, transfer of possession as part performance of the contract, agreement for execution of sale deed, etc. Nothing is to be seen from this document. Even though this document was allegedly executed in 1985, the defendant no.1 never filed any suit for specific performance of the contract. 6 7. Taking into consideration the material on record, I find no fault in the concurrent finding of facts by the Courts below. No question of law is involved in the present Appeal. 8. In the result, the Appeal stands dismissed. 9. As the Appeal itself is dismissed, Civil Application No. 1129 of 2003 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)