1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 562 OF 1991 SECOND APPEAL NO. 562 OF 1991 SECOND APPEAL NO. 562 OF 1991 Chandrashekar Kallappa Govinde, ) Age 40 years, residing at Chapalgaon ) Taluka Akkalkot. ).. Appellant Versus 1.Sharnabasappa Revansidhappa Nimbane ) Age 46 years, occ: Agriculture, ) residing at Chapangaon, Taluka ) Akkalkot. ) 2. Saibanna Kallappa Govinde ) 3) Shirmurti Kallappa Govinde ) 4) Baswanna Kallappa Govinde ) 5) Shrimant Kallappa Govinde )..Respondents (R.No.2 dismissed for want of prosecution Registrar (Judicial-I) order dated 23.6.04.) Mr. Amol Mhatre, Advocate i/b. Mr. P.K.Dhakephalkar, 2 advocate for the appellant. Mr. M.R.Patil, Advocate, for the Respondents CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE : 20th August, 2008. DATE : 20th August, 2008. DATE : 20th August, 2008. JUDGMENT JUDGMENT JUDGMENT 1. This is the Second Appeal filed by the original defendant No.1 against dismissal of the Regular Civil Appeal No.745 of 1983 wherein he had challenged the decree passed in Regular Civil Suit No.40 of 1978 in favour of the plaintiff, who is respondent No.1 before this Court. 2. To state in brief, the plaintiff Sharanabasappa had claimed that he had purchased the suit land Gat No.576 situated at Village Chapalgaon, Taluka Akkalkot, District Solapur from the defendant No.7 Sidhappa under a registered sale deed dated 2.8.1977 and he was also put in possession of the land. According to him, the defendant Nos. 1 to 6 were trying to interfere in his possession and therefore he filed the suit for perpetual injunction. In the alternative, he pleaded that if he was not found in possession, decree for possession be 3 also passed. 3. The suit was contested by the defendant Nos. 1 to 4 and 6 wherein they denied the right and authority of the defendant No.7 to execute such a sale deed. The defendant No.1 also contended that defendant No.7 Sidhappa had entered into an agreement to sell the suit land to him on 20.7.1972. According to him, he was already in possession of that land as tenant and from the date of agreement, he was confirmed to be in possession of the land inart performance of the agreement. defendant No.5 also adopted the plea taken by the other defendants. The trial Court framed certain issues and came to conclusion that the defendants Nos.1 to 6 were not in lawful possession of the land. The plaintiff has become owner of the land on the basis of the sale deed. In the result, the trial Court passed a decree for possession against the defendant Nos. 1 to 6. The defendant Nos. 1 to 6 preferred Civil Appeal No.745 of 1983. That appeal was also dismissed and therefore, the original defendant Nos. 1 to 5 filed the Second Appeal. Later on, the appellant Nos. 2 to 5 were transposed as respondent Nos. 2 to 5. They are, in fact, the brothers of the defendant no.1, who is appellant before this Court. The original defendant No.6 is not before this Court. The original plaintiff 4 is the respondent No.1. 4 The Appeal was admitted by order dated 23.1.1992 with the following observations :- "The substantial question of law is whether the evidence on record is correctly interpreted. Appeal admitted. To be heard with S.A. No.563 of 1991." 5. Heard the learned Counsel for the parties. 6. It may be noted that Second Appeal No.563 of 1991 is also filed by the present appellant. In that matter, the present appellant had filed Special Civil Suit No.52 of 1979 in the Court of Civil Judge, Senior Division, Solapur, for specific performance of the contract for sale of the suit land. According to him, Sidhappa, who is the defendant no.1 in that suit and who was defendant No.7 in the suit filed in the present matter, had entered into an agreement to sell the land to him on 20.7.1972 and had received an amount of Rs.3,000/- as earnest money and the balance amount was to be received on execution of the sale deed. He filed the suit in 1979 taking various grounds. The suit was contested and it came to be dismissed on the ground that the plaintiff 5 i.e. the present appellant had failed to prove that he was ready and willing to perform his part of the contract and also that the suit was barred by limitation. Against the dismissal of the suit, the appellant had preferred Regular Civil Appeal No.556 of 1985. That appeal was also dismissed by the Judgment and order dated 9.8.1991. Against the concurrent finding of both the Courts, the appellant had preferred Second Appeal No.563 of 1991. Today, the said Second Appeal No.563 of 1991 is dismissed by this Court holding that the Courts below were right in dismissing the suit on both grounds. In view of this, it is clear that the present appellant has no legal right or title over the suit property. The Courts below in Special Suit No.52 of 1979 filed by the present appellant, had held that the plaintiff/appellant was never in possession as a tenant and, according to the trial Court, he had taken possession in 1975. However, some dispute was going on before the Revenue Authorities and even the Revenue Authorities recorded his possession only from 1975. However, the appellate Court in that matter had held that the present appellant had come in possession in 1972 as the possession was delivered to him by Sidhappa. As it is proved that the present appellant was not ready and willing to perform his part of the contract and the 6 suit for specific performance was barred by limitation. The present appellant cannot claim legal right to remain in possession of the suit property. In view of this, the present Appeal is also liable to be dismissed. 7. In the result, the Appeal stands dismissed with costs of Rs.5,000/- (Rupees five thousand only). (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)