1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.698 OF 2007 Gurudayalsingh s/o Maharsingh Bindra, age: 65 years, Occ: Agril & Business, R/o Osmanpura, Aurangabad. Appellant Versus Radhakishan Maroti Magar, since deceased, through his legal representatives: 1 Tulsabai w/o Radhakishan Magar, age: major, Occ: Household, R/o Osmanpura, Aurangabad. 2 Smt.Sarubai w/o Maroti Magar, age: major, Occ: Household, R/o Osmanpura, Aurangabad. 3 Raju s/o Radhakishan Magar, age: major, R/o Osmanpura, Aurangabad. 4 Balkrishna s/o Radhakishan Magar, age: major, R/o Osmanpura, Aurangabad. 5 Vijaykumar s/o Phulchand Agrawal, age: major, Occ: Nil, R/o Kirana Chowdi, Aurangabad. 6 Chief Promoter, Shri Shatinath Cooperative Tenants Ownership Housing Society Ltd., Aurangabad. Respondents Mr..P.M.Shah, Senior Counsel holding for Mr.Amol Sawant, advocate for the appellant. Mr.R.D.Deshpande, advocate for Respondents No.5. 2 CORAM: R.M.BORDE, J. DATE : 23rd September, 2009. P.C.: 1 This is an appeal by original plaintiff raising exception to the concurrent judgments delivered by both the Courts below. 2 Plaintiff instituted Special Civil Suit No.10/1978 claiming specific performance of contract. According to the plaintiff, defendants executed an agreement to sale on 07.12.1974 in favour of plaintiff, whereby agreed to sell an area to the extent of 6 acres 3 gunthas for consideration of Rs.12000/­. Defendant no.1 is stated to have received advance amount of Rs.5000/­. However, in spite of several requests made by the plaintiff, defendants did not execute the sale deed in favour of plaintiff on one pretext or other. According to the plaintiff, he is ready and willing to perform his part of agreement. He sent notice to the defendants on 13.08.1977 calling upon them to execute the document. Defendants tendered reply to the said notice on 19.08.1977. It is also contended by the plaintiff that original defendant Radhakishan, with mala fide intention, sold suit land to one Lekhraj Tanwani illegally and without any authority. Subsequently, Lekhraj sold said land to other defendants and as such they are arrayed as parties to the suit. 3 Defendant no.1 Radhakishan filed reply at Exhibit­18 and denied the contentions raised by plaintiff. He denied to have entered into an agreement in respect of suit land with the plaintiff. It is contended by defendant no.1 that he never agreed to sell land to the extent of 6 acres 3 gunthas in favour of the plaintiff. Defendant no.1 also denied the agreement to sale and contends that same is a false and forged document. 3 4 Defendant no.5 has resisted the suit by filing written statement. According to defendant no.5, plaintiff has not approached the Court with clean hands and deliberately suppressed material facts. Defendant no.5 has also contended that suit is barred by provisions of law of limitation. It is contended by defendant no.5 that Radhakishan had sold his land to one Lekhraj Tanwani. The agreement to sale was executed in favour of Lekhraj prior to execution of sale deed on 17.01.1975 and accordingly mutation entries were taken in revenue record. Lekhraj thereafter sold the property to defendant no.5. Defendant no.5 contends that the suit land has been purchased by concerned defendant without having any knowledge about alleged agreement entered into with plaintiff. Defendant no.5 contends that he is bona fide purchaser for consideration of Rs.30,0000/­ in respect of half portion of the land. It is also contended that prior to effecting purchase, extensive inquiry was conducted by concerned defendant and having found clear title, the property was purchased by concerned defendant. Defendant no.5 along with defendant no.6 moved an application for sanction of development plan for the property comprising of 6 acres and 3 gunthas. Lekhraj has also moved an application to the Collector, Aurangabad, for grant of N.A. Permission on 03.06.1982. Defendant no.6 has also contended that they have purchased the property to the extent of 3 acres and 1­1/2 gunthas for consideration of Rs.40,000/­ on 02.04.1982 and before purchase of property, a proclamation was published in the News Paper on 10.10.1981 calling upon interested persons to file objections. However, plaintiff did not file objection . After purchase of property, sanction in respect of N.A. and Lay Out in respect of suit land was accorded and entry was recorded in the revenue record. It is further contended that wife and mother of deceased Radhakishan have raised objection for sanction of Lay Out plan, which resulted into filing of Regular Civil Suit No.809/1993 against Lekhraj and present defendants and others, which was ended into compromise on 03.12.1982. Defendant no.6 further contends that plaintiff was aware of all these facts. Despite the fact that plaintiff, being aware 4 of all these facts, has not taken any steps. Defendant no.6 contends that he has invested huge amount and developed the property. It is contended that defendants no.5 and 6, in accordance with the sanctioned plan, have transferred open space in favour of Municipal Corporation by executing sale deed on 09.02.1987. In this view of the matter, it is contended that defendants are bona fide purchaser for value without notice of earlier transaction. Defendant nos.5 & 6, therefore, have prayed for dismissal of the suit. 5 The trial Court, after receiving evidence led by the parties, reached the conclusion that plaintiff has established the agreement to sale having been executed by defendant no.1 in his favour. The trial Court has also recorded a finding that the plaintiff has parted with part of consideration of Rs. 5000/­ as earnest amount on 07.12.1974. The trial Court, however, instead of granting decree of specific performance, has exercised discretion and directed refund of consideration amount of Rs.5000/­ in favour of plaintiff. The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.285/1995 by original plaintiff. The appeal came to be heard and disposed of by II Ad hoc Additional District Judge, Aurangabad, who was pleased to dismiss same by judgment and order dated 16.09.2000. 6 I have perused the judgments delivered by both the Courts below. On perusal of the judgments, it is evident that the agreement to sale in question is executed on 07.12.1974, whereas suit was presented seeking specific performance of agreement by the plaintiff in the year 1978. There are certain intervening developments which persuaded learned trial Judge to exercise discretion in directing refund of consideration amount to the plaintiff instead of granting decree of specific performance and those developments are discussed in the judgment by the first appellate Court as well as trial Court. It is borne out from record that original owner i.e. defendant no.1 had entered into an agreement to 5 sell the property in favour of Lekhraj on 19.07.1967. Subsequently, there was sale deed executed in favour of said Lekhraj on 18.09.1978. Lekhraj had transferred part of the property in favour of defendant no.5 Vijaykumar and one Anandi Devi, who, in turn, resold the land by executing sale deed on 12.06.1981 in favour of Lekhraj. Interest of defendant no.6 is also created by virtue of sale of part of property by Lekhraj. It is also borne out from record that Lekhraj, who had purchased the property from Radhakishan, original owner and who, in turn, has executed sale deed in favour of other defendants, is not impleaded as party to the suit. In these circumstances, the Courts below, on consideration of all the relevant aspects, have recorded a finding that defendants are bona fide purchasers for value without having notice in respect of execution of agreement to sale in favour of plaintiff. Considering all these developments, the Courts below thought it fit not to exercise discretion in granting decree of specific performance in favour of the plaintiff. The satisfaction arrived at by the trial Court need not be interfered with by the appellate Court without there being compelling circumstances. I do not find that the discretion exercised by the Courts below in refusing to grant decree of specific performance and further passing an order in respect of refund of consideration can be said to be irrational or illegal. No interference is, therefore, called for in exercise of powers under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa69807