1 sa399-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.399 OF 2010 WITH CIVIL APPLICATION NO.1016 OF 2010 Shamala Kamlakar Gaikwad ..Appellant Vs. Neeta Digambar Sonawane ..Respondent ......... Mr.Abhijeet A. Desai, for appellant. Mr.Jaydeep Deo, respondent no.1. ......... CORAM: R.G.KETKAR, J. DATE : 5th AUGUST, 2010. P.C. : Heard Mr.A.A.Desai, learned counsel for the appellant and Mr.Jaydeep Deo, learned counsel for the respondent. 2] This appeal is preferred by the original defendant challenging the judgment and decree dated 16 th April, 2010 passed by the learned District Judge-9, Pune in Civil Appeal No.502 of 2007 as also the judgment and decree dated 9 th March, 2007 passed by the learned IIIrd Addl. Judge, Small Causes Court & Jt. Civil Judge Senior Division, Pune in Special Civil Suit No.439 of 1997. By these judgments, the courts below decreed the said suit instituted by the 2 sa399-10.sxw respondent for possession of the suit premises known as “Gauri Niwas”. admeasuring 20 feet in width east-west and 30 feet length in south-north out of Survey No.22/1/1/1 of Ghorpadi, Pune (hereinafter referred as the suit premises). The parties will hereinafter be referred as per their original status in the trial court. 3] Plaintiff instituted suit for possession of the suit premises inter alia contending that she had purchased the suit premises from one Vaijanath Tiwari under a registered sale deed dated 31 st October, 1996. Said Tiwari had given the suit premises in possession of defendant. After obtaining the ownership of the suit premises, plaintiff demanded possession of the suit premises from defendant. Since defendant did not hand over the possession, plaintiff instituted suit for recovery of possession of the suit premises. Defendant resisted the suit by filing written statement as well as counter claim. Defendant contended that she is in possession of the suit premises by virtue of agreement of sale dated 18 th September, 1987 executed by said Tiwari. In pursuance of the said agreement, she was put in possession of the suit premises with effect from 1 st December, 1988. By agreement of sale dated 18 th September, 1987 said Tiwari agreed to sale the suit premises to defendant a consideration of Rs.40,000/-. On the day of execution of the agreement, defendant had paid Rs.15,000/- in part performance of the said agreement. She paid also Rs.25,000/- to said Tiwari on 5 th September, 1989 and, thus, the entire consideration was paid by her to said Tiwari. Defendant, therefore, submitted that she is in possession of the suit premises. She was and is ready and willing to perform her part of contract. Though said Tiwari was called upon to execute the sale deed, he refused to execute the sale deed. Defendant further contended that on 5 th September, 3 sa399-10.sxw 1989 she had paid Rs.25,000/- to Tiwari. She also prepared sale deed and also purchased stamps of Rs.4,000/-. She had approached the office of Sub- Registrar for executing the sale deed, but the said Tiwari failed to turn up. Said Tiwari demanded Rs.5,000/- extra. However, she expressed her inability to pay Rs.5,000/- more. She issued notice to Tiwari on 2 nd November, 1996 which was replied by him on 19 th November, 1996. Defendant, therefore, denied that plaintiff has acquired ownership by virtue of sale deed 31 st October, 1996. By way of counter claim, defendant prayed for declaration that the sale deed executed by Tiwari in favour of plaintiff be declared as null and void and she may be paid compensation of Rs.1,00,000/-. 4] Plaintiff filed reply to the said counter claim and denied the claim of defendant. Plaintiff asserted that the counter claim made by defendant suffers from non-joinder of necessary party namely Tiwari. It has also come on record that during the pendency of the suit, defendant had instituted Regular Civil Suit No.378 of 2000 in the court of Civil Judge Senior Division, Pune for specific performance of agreement of sale dated 18 th September, 1987. 5] On the basis of the rival contentions, learned trial Judge framed necessary issues and the parties led oral as well as documentary evidence on record. On the basis of the material on record, the learned trial Judge decreed the suit. Defendant carried the matter in the appeal which was also dismissed. It is against these judgments, defendant preferred above Second Appeal. 6] In support of this appeal Mr.Desai submitted that the suit instituted by plaintiff was wholly misconceived as defendant claimed ownership of the suit 4 sa399-10.sxw premises. He submitted that even as per the agreement of sale dated 18 th September, 1987 defendant had paid the entire consideration to said Tiwari. Defendant was also put in possession of the suit premises in part performance of the said contract. On 5 th September, 1989 defendant had paid balance consideration of Rs.25,000/- and she kept the sale deed ready and for that purpose she had also purchased stamps of Rs.4,000/-. However, said Tiwari demanded extra amount of Rs.5,000/- and, since defendant expressed her inability to pay the said amount, said Tiwari did not execute the sale deed. Defendant was and is ready and willing to perform her part of contract. Mr.Desai, therefore, contended that defendant is entitled to protect her possession as per the Section 53-A of the Transfer of Property Act, 1882 (for short “the Act”) 7] Mr.Desai also invited my attention to the oral evidence to contend that plaintiff was aware that defendant is in possession of the suit premises. Despite this, without making any inquiry about the status of defendant, plaintiff purchased the suit premises. He, therefore, submitted that plaintiff cannot claim to be a bona fide purchaser of the suit premises. He further submitted that defendant had already instituted a suit against said Tiwari for specific performance of contract in the court of Civil Judge, Senior Division, Pune which is pending. He, therefore, submitted that the appeal requires consideration. 8] On the other hand, Mr.Deo supported the impugned judgment and decree. He submitted that defendant claimed to have entered into agreement of sale dated 18 th September, 1987. It is the case of defendant that she had paid Rs. 15,000/- on the day of the agreement of sale and the balance amount of Rs. 5 sa399-10.sxw 25.000/- was paid on 5 th September, 1989. However, no sale deed was executed, though the same was kept ready by defendant. In fact, after 1989, defendant did not take any steps. Subsequently, said Tiwari had sold the suit premises to plaintiff under the registered sale deed dated 31 st October, 1996. Defendant issued notice to said Tiwari which was replied on 19 th November, 1996 wherein he brought to the notice of defendant about the transaction between him and plaintiff. Even, thereafter, she did not take any step. It is only after plaintiff instituted the suit for recovery of possession, defendant set up plea of part performance under Section 53-A of the Act. 9] I have considered the rival contentions of learned counsel for the parties. It is not in dispute that the agreement of sale was executed between defendant and said Tiwari on 18 th September, 1987. Admittedly the said agreement is not registered. It is the case of defendant that on the day of execution of agreement of sale, she had paid Rs.15,000/- to said Tiwari. She was put in possession of the suit premises with effect from 1 st December, 1988. It is, however, material to note that defendant further asserted that she had paid balance consideration of Rs.25,000/- to said Tiwari on 5 th September, 1989 and also kept ready the sale deed after purchasing stamps of Rs.4,000/-. It is her specific case that on that day said Tiwari demanded Rs.5,000/- extra. She expressed her inability to pay the said amount and, therefore, Tiwari refused to execute the sale deed. However, defendant did not take any steps by filing suit for specific performance against the said Tiwari on account of his refusal in the year 1989. 10] It has also come on record that defendant issued notice to said Tiwari on 2 nd November, 1996 which was replied by him on 19 th November, 1996 wherein it 6 sa399-10.sxw was brought to her notice that the suit premises is sold to plaintiff. Even thereafter, defendant has not taken any steps. The plea raised by defendant based upon the Section 53-A of the T.P. Act against the subsequent purchaser, is wholly misconceived. In the first place, considering the aforesaid fact, it cannot be said that defendant acquired title in respect of the suit premises. Secondly, before she could claim protection under Section 53-A of the Act, the suit premises was already sold to plaintiff. The suit instituted by defendant for specific performance is in the year 2000, that is to say, after 13 years from the execution of the agreement of sale between defendant and Tiwari. Considering the provisions of Section 46 of the Contract Act, it cannot be said that defendant took steps within a reasonable time to obtain relief of Specific Performance. Thirdly, as per the terms of agreement of sale dated 18 th September, 1887, sale deed was to be executed in the first week of February 1988. It was agreed that if the purchaser (defendant herein) failed to get sale deed executed by that time, the vendor (Tiwari) was to treat the said agreement cancelled and was at liberty to forfeit the amount paid under the agreement. If as per the case of defendant said Tiwari refused to execute sale deed on 5 th September, 1989, she ought to have instituted suit within three years from 5 th September, 1989 for specific performance of contract. She did not institute the suit till the year 2000. Defendant did not acquire ownership of suit premises on the strength of agreement of sale dated 18 th September, 1987. 11] The contention raised by defendant that plaintiff was not bona fide purchaser of the suit premises, is wholly misconceived. The agreement of sale dated 18 th September, 1987 between defendant and Tiwari is not a registered instrument. It is in these circumstances, it cannot be said that plaintiff is not a 7 sa399-10.sxw bona fide purchaser of the suit premises. In these circumstances, I do not find that the Second Appeal involves any substantial question of law. Hence, Second Appeal is dismissed with no order as to the costs. In view of the dismissal of the Second Appeal, no orders are necessary on the Civil Application. The Civil Application stands dismissed with no orders to the costs. 12] However, at the request of the learned counsel for defendant, the operation of this order shall remain stayed for six weeks from today, on the condition that the appellant/defendant shall not create any third party interest in respect of the suit premises. [R.G. KETKAR, J.]