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2010 DIGILAW 346 (BOM)

HARISH KASHINATH MANE v. HARIBHAU ADKOJI SAPATE

2010-03-04

F.M.REIS

body2010
ORDER :- Heard the learned Counsel for the appellants and the respondent. 2. This appeal challenges the judgment and decree dated 11-11-2009 passed by the learned District Judge, Gadchiroli in regular Civil Appeal No. 25 of 2009 thereby rejecting the appeal filed by the appellant challenging the judgment and decree dated 27-2-2009 passed by the learned Civil Judge, Junior Division, Armori in regular Civil Suit No. 9 of 2002. The respondent was the owner of the land bearing gat No. 1217 admeasuring 0.78 H.R. at Armori, district Gadchiroli, which was purchased by him from one Smt. Barubai Adkuji Satpute on 12-9-1989. It is the contention of the respondent that an agreement for sale was entered into between the respondent and the appellant along with one Narayan and Ranjana, whereby the entire property was agreed to be purchase, admeasuring 0.78 H. R. on 16-9-1989 for a total consideration of Rs. 2,00,000/- of which Rs. 55,000/- were paid as an earnest money. The said transaction coula not be completed as the parties refused to perform their respective parts of their contract. It is further the case of the respondent that the appellant is an adjacent owner and occupier of certain area i.e. 0.16 H. R. unauthorisedly. The respondent got the land converted to non-agricultural use and the layout plan was approved by the revenue officers after paying the visit to the said property which was in possession of the respondent. Excluding the said plots, the permission wa5 accorded for the rest of the property. The respondent demanded possession of the said area and in view of the refusal, the suit was filed by the respondent seeking restoration of possession of the said area of the land. 3. The appellant filed his written statement and denied the contentions of the respondent. It is his contention that at the time of execution of agreement of sale, the appellant was put in possession of the suit property. It is further his contention that he was ready to perform his part of the contract but the respondent failed to perform his part of the contract. He further claimed that the respondent had issued a false notice dated 31-12-1990 to the appellant and all the proposed purchasers informed that the agreement for sale stood cancelled. It is further his contention that he was ready to perform his part of the contract but the respondent failed to perform his part of the contract. He further claimed that the respondent had issued a false notice dated 31-12-1990 to the appellant and all the proposed purchasers informed that the agreement for sale stood cancelled. It is further his contention that thereafter he along with his friend approached the respondent to execute the sale deed but the respondent refused to do so. He further claimed that he was in possession of the suit property and such possession is from 30-3-1993 which is open, continuous and hostile possession to the knowledge of the respondent and as such he became the owner by adverse possession. He admits that the conversion of the land to non-agricultural use was carried out by the respondent, but, however, claims that he had objected before the Collector on that count. He claimed that he was in possession of the suit property jointly with the proposed purchasers. 4. After framing the issues and recording of the evidence, the learned Civil Judge, Junior Division at Armori decreed the suit filed by the respondent and directed the appellant to handover the vacant possession of the land shown in schedule-A to the respondent. The learned Judge further restrained the appellant, his servant or any other person from disturbing possession of the respondent of the property described at schedule 'B'. 5. While passing the said judgment, the learned Judge, after considering the evidence on record, came to the conclusion that the appellant had encroached upon the property of the respondent to the extent of area shown in Schedule 'A'. The learned Judge, on perusal of the cancellation deed dated 18-9-1990 which was at Exh.87, found that the proposed purchasers namely, Narayan and Ranjana executed the cancellation deed in favour of the respondent stating that they along with the appellant were not in position to arrange the remaining amount to be paid to the respondent. Accordingly, the agreement was cancelled on receipt of a sum of Rs. 20,000/- from the respondent as refund of earnest money and further sum of Rs. 15,000/- on 22-12-1991 from the respondent and beside that it is the claim of the respondent that he had paid Rs. 20,000/- to the appellant. The appellant contends that said document at Exh. 87 is a false document. 20,000/- from the respondent as refund of earnest money and further sum of Rs. 15,000/- on 22-12-1991 from the respondent and beside that it is the claim of the respondent that he had paid Rs. 20,000/- to the appellant. The appellant contends that said document at Exh. 87 is a false document. But, however, on perusal of the evidence of P. W.2, the learned Judge came to the conclusion that there was no reason to disbelieve the evidence of P.W.2 Prabhakar and consequently accepted the cancellation deed at Exh. 87. The learned Judge further held that the document at Exh. 170 claimed to have been issued to the appellant created a reasonable doubt about its authenticity. The learned Judge also discarded the letter at Exh. 171 as there was no link between the receipt of the notice and Exh. 170. The learned Judge further held that in any event despite of said notice, the appellant had not immediately filed any suit for specific performance of the agreement nor issued any legal notice to that effect. The learned Judge further held that on perusal of the evidence on record, it establishes that the appellant never paid or offered to pay the balance consideration to the respondent. This behaviour of the appellant demonstrate that the appellant was not ready and willing to perform his part of the contract. With regard to the claim of the appellant that he was in possession of the suit property, the learned Judge, on perusal of agreement of sale, held that there was no recital therein to the effect that the possession of the suit property was ever delivered to the appellant. No documentary evidence was adduced by the appellant to demonstrate that at any point of time, the respondent has surrendered the possession of the suit property in favour of the appellant. The learned Judge, on perusal of the survey record namely 7/12 extract, found that the name of the respondent was figuring therein which discloses that the possession of the property was with the respondent. Apart from that the learned Judge also found that the respondent had taken steps to convert the land to non-agricultural use and on the basis of evidence on record came to the conclusion that the appellant was not in possession of the suit property except for the area encroached by the appellant and claimed by the respondent. Apart from that the learned Judge also found that the respondent had taken steps to convert the land to non-agricultural use and on the basis of evidence on record came to the conclusion that the appellant was not in possession of the suit property except for the area encroached by the appellant and claimed by the respondent. The learned Judge after examining the evidence on record rejected the claim of the appellant that he was in adverse possession of the suit property. In view of the overall appreciation of evidence on record, the learned Judge came to the conclusion that the respondent has proved his case and consequently directed that the possession of the property as shown in Schedule 'A' and identified as plots No.1, 2, 3 and 16 in the layout plan be ordered to be delivered to the respondent. 6. Being aggrieved by the said judgment dated 27-2-2009, the appellant preferred regular Civil Appeal No. 25 of 2009 before the Principal District Judge at Gadchiroli. The learned District Judge by judgment dated 11-11-2009 dismissed the appeal preferred by the appellant. While disposing of the said appeal, the learned District Judge rejected the claim of the appellant that he was in adverse possession of the suit property. The learned Judge after re-appreciating the evidence on record came to the conclusion that the respondent was entitled to the possession of the suit property as claimed by him. The learned Judge while rejecting the claim of the appellant by adverse possession found that it was the contention of the appellant that he had entered into the possession of the suit property on the basis of the agreement which is construed to be permissive possession. The learned Judge found that as there was no pleadings that the appellant was in adverse possession of the suit property, the claim of the plaintiff in that regard could not be accepted. The learned Judge further on the basis of material on record found that the appellant in his written statement at para 17 had claimed that the appellant along with one Narayan and Ranjana jointly served a notice dated 26-2-2000 on the respondent regarding readiness and willingness to perform their part of the contract. This conduct of the appellant discloses that there is no question of any hostility in possession of the suit property by the appellant by denying the title of the respondent. This conduct of the appellant discloses that there is no question of any hostility in possession of the suit property by the appellant by denying the title of the respondent. Such conduct negates the plea of the appellant that on 30-3-1990 he was in adverse possession of the suit property. The learned Judge consequently on appreciation of evidence on record found that there was no merit in the appeal preferred by the appellant which came to be dismissed by the judgment dated 11-11-2009. Being aggrieved by the said judgment the appellant has preferred this second appeal. 7. The learned Counsel for the appellant submitted that the Courts below have come to perverse findings of fact to the effect that the appellant had failed to establish that he was in possession of the suit property in view of part performance of the contract. The learned Counsel further submitted that the appellant had adduced sufficient material on record to come to the conclusion that the appellant was in possession of the suit property. The learned Counsel further submitted that there was no issue framed by the Courts below with regard to such contention of part performance as raised by the appellant in the written statement. The learned Counsel also submitted that the issue with regard to adverse possession has not been framed by the Courts below. The learned Counsel as such submitted that in view of such failure in framing the issue, a substantial question of law arises in the present appeal for consideration under section 100 of the Code of Civil Procedure. 8. On the other hand, the learned Counsel appearing for the respondent supported the judgment passed by the Courts below. It was his submission that both the Courts have concurrently held that the respondent had not delivered the possession of the suit property to the appellant in part performance of the contract. He further submitted that the contract had already been terminated in view of the cancellation deed which was executed on instructions of the appellant. He further submitted non-framing of an issue that does not vitiate the judgment passed by the Courts below as admittedly the aspects were considered and dealt with by the learned trial Judge as well as by the District Judge. He further submitted non-framing of an issue that does not vitiate the judgment passed by the Courts below as admittedly the aspects were considered and dealt with by the learned trial Judge as well as by the District Judge. It is further his submission that there is no perversity in the findings of the Courts below and as such no interference is called for by this Court in the second appeal. 9. Having heard the learned Counsel and on perusal of the record, I find that merely because no issues have been framed does not in any way vitiate the judgment passed by the Courts below. The issues are framed only for the purpose of regulating the proceedings in the suit. It is well settled that omission to frame an issue of fact is not fatal for the suit when the parties went to trial knowing fully well their rival case and led evidence not only in support of his case but also to challenge the case of the adversary. As such, absence to frame specific issue on the point raised and to be decided is not fatal and the finding is not liable to be set aside only on the ground that formal issue has not been framed. In the present case the contentions of the appellant have duly been considered by the Courts below. The appellant has failed to produce any evidence to show that any prejudice was caused to him on account of non-framing of such issues. The learned trial Judge on appreciating the evidence on record came to the conclusion that there was no material adduced by the appellant to the effect that the possession of the suit property was delivered to the appellant pursuant to the agreement for sale. This finding has been arrived at by the trial Court on appreciating the oral as well as documentary evidence produced on the record. Apart from that survey records produced by the respondent disclose that the possession of the suit property was with the respondent. This fact coupled with the activity carried out by the respondent to convert the land to non-agricultural use conclusively establish that the finding arrived at by the Courts below with regard to the possession of the suit property by no stretch of imagination can be termed as perverse. This fact coupled with the activity carried out by the respondent to convert the land to non-agricultural use conclusively establish that the finding arrived at by the Courts below with regard to the possession of the suit property by no stretch of imagination can be termed as perverse. Both the Courts below on appreciating the evidence on record have come to the conclusion that the possession of the suit property was never delivered to the appellant. 10. Apart from that in the case of Mohan Lal vs. Nihal Singh, reported at (2001) 8 SCC 584 , the Apex Court held that the question of possession of the suit land is essentially a question of fact and this question of fact cannot be interfered with in a second appeal under the provision of section 100 of the Code of Civil Procedure. 11. With regard to the next contention of the learned Counsel for the appellant to the effect that the appellant was in possession of the suit property on the basis of part performance of the contract, it is well settled that to claim part performance under the provisions of section 53-A of the Transfer of Property Act the following necessary conditions are to be satisfied. : (1) There must be a contract to transfer for consideration any immovable property. (2) The contract must be in writing signed by the transferee or by someone on his behalf. (3) The writing must be in such words from which the terms necessarily construe that the transfer can be ascertained. (4) The transferee must in part performance of the contract take possession of the property or part thereof. (5) The transferee must have done some act in furtherance of the contract, and (6) The transferee must have performed and willing to perform his part of the contract. 12. In the present case, the appellant who claims to be in possession of the property in part performance of the agreement for sale, has failed to establish that the possession was delivered to him pursuant to the agreement. Both the Courts below have concurrently held that the possession was not delivered to the appellant pursuant to the agreement for sale. In the present case, the appellant who claims to be in possession of the property in part performance of the agreement for sale, has failed to establish that the possession was delivered to him pursuant to the agreement. Both the Courts below have concurrently held that the possession was not delivered to the appellant pursuant to the agreement for sale. Apart from that the evidence disclose that the appellant was aware about the cancellation deed dated 18-91990, but, however, from the year 1990 till 2002, the appellant has failed to adduce any evidence to show that during such a long period the appellant had done any act in furtherance of such possession over the suit land. Admittedly, the balance consideration which worked out to more than Rs. 1,50,000/- was admittedly not paid or inadequate consideration was paid. The appellant has failed to adduce any evidence to show that any correspondence was addressed to the respondent to the effect that he was ready and willing to perform his part of the contract. Failure of such acts itself shows that the appellant in an event is not entitled to claim the protection under the provisions of section 53-A of the Transfer of Property Act. Apart from this fact the appellant has failed to establish that any possession was given to him pursuant to such part perform ance. In view of the above, I find that the appellant has failed to satisfy the conditions as required by law to claim protection under the provisions of section 53-A of the Act. 13. The Courts below have also found that the appellant has failed to establish that he was ready and willing to perform his part of the contract. In fact, there was no material on record to come to the conclusion that the appellant, at any point of time, was ready and willing to perform his part of the contract by paying the balance consideration which itself disentitles the appellant to claim any relief as sought by him as far his claim of part performance is concerned. As such the contention of the learned Counsel for the appellant on that count' will have to be rejected. 14. As such the contention of the learned Counsel for the appellant on that count' will have to be rejected. 14. Both the Courts below have on minute examination of record and relying upon the documentary as well as oral evidence adduced by the parties have come to the conclusion that the appellant was not entitled to continue in possession of the suit property. With regard to the claim of adverse possession, both the Courts below have concurrently held that the appellant has failed to establish any hostility in such alleged possession. To claim the adverse possession, the parties have to establish not only the continuous possession without any interruption but also that such possession was hostile to the true owner. No evidence has been adduced by the appellant to the effect that the possession of the appellant was hostile to the respondent. Apart from that it is the case of the appellant himself in the written statement which is otherwise disputed by the respondent, that the possession was given pursuant to the agreement for sale. Such possession cannot be in adverse possession to the true owner. In (2002) 2 SCC 612 in the case of Mool Chand Bakhru and another vs. Rohan and others the Apex Court has held thus : "The High Court relying upon a judgment of this Court in Mohan Lal vs. Mirza Abdul Gaffar, (1996) 1 SCC 639 came to the conclusion that since the respondents were claiming to be in possession of the property in part performance of the agreement to sell, the plea of acquisition of title by adverse possession was not available to them. Learned Counsel appearing for the respondents did not assail this finding of the High Court. The view expressed in Mohan Lal case has been reiterated by this Court in Roop Singh vs. Ram Singh, (2002) 3 SCC 708. It has been held in the latter judgment that the pleas of adverse possession and retaining the possession by operation of section 53A of the Act are inconsistent with each other. Such a plea is not available to a proposed vendee." No evidence has been adduced by the appellant to substantiate his contention of adverse possession and in any event such plea is not available to the appellant in view of the said judgment of the Apex Court. Such a plea is not available to a proposed vendee." No evidence has been adduced by the appellant to substantiate his contention of adverse possession and in any event such plea is not available to the appellant in view of the said judgment of the Apex Court. Both the Courts below have arrived at the correct conclusion that the appellant has failed to establish that he was in adverse possession of the suit property. 15. For the foregoing reasons I find that no error has been committed by the Courts below in the findings of facts arrived at in the impugned judgments. The learned Counsel for the appellant has failed to point out any perversity in the said findings. Consequently, no substantial question arises in the present second appeal which calls for interference in the appeal under Section 100 of the Code of Civil Procedure. The appeal stands summarily dismissed. Appeal dismissed.