KANHAIYALAL MOTILAL TALERA Vs. SARUBAI NARAYAN MULIK

JUDGEMENT

(1.) Heard submissions at the Bar. Written submissions tendered on behalf of the Plaintiff and Defendant Respondent no1 are also seen. Perused record and proceedings. The Appeal is against the Judgment and order dated 16112007 passed by learned Jt. Civil Judge S.D., Pune whereby the suit was dismissed with Costs.

(2.) The Plaintiff had filed the suit for the specific performance of the Suit agreement being labeled as "Visar Pavati" dated 28031979. The plaintiff had paid sum of Rs 600/ on 15 111985, Rs.2000/ on 07011985 Rs 3000/ on 04021985 towards part payment of the consideration. It is case of the Plaintiff appellant that Smt. Sarubai Narayan Mulik (Original Defendant no. 1 ) had agreed to sell the suit property described as all that piece and parcel of the agricultural land or ground situated at Survey No. 16 admeasuring five Acres on Southern Side of village Vadgaon Sheri, Taluka Haveli District Pune (Now within limits of Pune Municipal Corporation) bounded on east by S.No. 14, on west by village boundary of Vadgaon Sheri and Yeravada and village Road, On North by remaining portion of S. No. 16/2 Vadgaon Sheri. The plaintiff averred in the plaint that Sarubai's earlier Pending suit no. 1102 of 1967 filed by her against her Husband in the Court of CJJD Pune, was decreed on 25031970. Sarubai acquired absolute ownership of five acres (Suit land) in the later suit no. 955 of 1974.

(3.) On these averments the plaintiff commenced the said suit and Plaintiff prayed for specific performance of the agreement directing defendant for execution of the sale deed of the suit property. The stand taken by the defendantrespondent, inter alia, was that the plaintiff had no legal right to claim specific performance of the 'Visar Pavati' in question, and that, therefore, he was not entitled to the relief claimed by him. It may be mentioned that having raised the relevant plea in his written statement the defendant remained absent and the suit proceeded exparte. It appears that even her learned advocate did not remain present to assist the Court. The plaintiff's evidence affidavit under Order XVIII Rule 4 was sworn recorded on 05092006. The Plaintiff was cross examined on 09102007. But nothing significant was elicited from the Plaintiff for to disbelieve the affidavitevidence of the Plaintiff permitted by the learned trial Judge, upon which the Plaintiff was cross examined. Thus the Plaintiff's evidence remains unchallenged on record. Defendant did not lead any evidence to the contrary.