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2016 DIGILAW 1185 (BOM)

Vinod Waman Barde v. Anandrao Ragho Kinhekar

2016-07-13

R.K.DESHPANDE

body2016
JUDGMENT : The trial Court passed a decree on 03.03.2011 for delivery of possession based on title. The counter claim filed by the defendants for specific performance of contract dated 18.02.1980 was dismissed. The lower appellate Court has reversed the decree passed by the trial Court in Regular Civil Appeal No. 17 of 2011 and a suit filed by the plaintiffs has been dismissed. The counter claim filed by the defendants for specific performance of contract has been decreed on 03.04.2014. The original plaintiffs are before this Court. 2. On 21.06.2016, this Court admitted the matter on the following substantial question of law. Whether the judgment delivered by the lower Appellate Court needs to be set aside on the ground of ignorance relevant findings recorded by the trial Court on the question of title of the plaintiff, with an order of remand to the lower Appellant Court, to decide the appeal afresh? The parties were put on notice that the matter shall be heard on the next date finally as it is a question of remand which may be required to be considered by this Court. 3. If the lower Appellate Court has passed a decree for specific performance of contract against the plaintiffs, it follows that the title of the plaintiffs over the suit property has been established. The lower Appellate Court was, therefore, required to consider the other questions relating to the terms of agreement, payment of consideration, readiness and willingness to perform the part of contract, the question of limitation etc., which have been dealt with by the trial Court. In the absence of discussion on such aspects of the matter the Court could not have passed a decree for specific performance of contract. The judgment delivered by the lower appellate Court ignores the relevant findings recorded by the trial Court on the question of title of the plaintiffs also. The judgment and order passed by the lower Appellate Court cannot, therefore, be sustained. The substantial question of law is answered accordingly. 4. In the result, the appeal is allowed. The judgment and order dated 03.04.2014 passed by the lower Appellate Court in Regular Civil Appeal No. 17 of 2011 is hereby quashed and set aside. The matter is remanded back to the lower Appellate Court to decide the same afresh on its own merits in accordance with law. 4. In the result, the appeal is allowed. The judgment and order dated 03.04.2014 passed by the lower Appellate Court in Regular Civil Appeal No. 17 of 2011 is hereby quashed and set aside. The matter is remanded back to the lower Appellate Court to decide the same afresh on its own merits in accordance with law. The parties to appear before the lower appellate Court on 25th July, 2016. The lower appellate Court to decide the matter within a period of six months thereafter.