MURLIDHAR BAPUJI VALVE Vs. YALLAPPA LALU CHAGULE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 2-3-1982 passed by 4th Joint Civil Judge, Senior Division, Pune in Special Suit No. 127 of 1966. The appeal has been filed by the original plaintiff as the trial Court has decreed the suit for specific performance filed by the plaintiff only in part and not in its entirety. During the pendency of the suit, the original defendant Nos. 1 and 2 died. The heirs of original defendants Nos. 1 and 2 are brought on record of the suit and are impleaded as the respondents Nos. 1 and 2 in this appeal. The respondent No. 3 in the appeal was original defendant No. 3 in the said suit. The respondent No. 3 claims to be subsequent transferee for value without notice. The respondent No. 3 has filed cross-objections as permissible under the Code of Civil Procedure. The respondents Nos. 1 and 2 i.e. the heirs and legal representatives of original defendants Nos. 1 and 2 have not filed any objections against the findings recorded by the trial Court in favour of the appellant herein. The parties to the appeal are hereinafter referred to as the original plaintiff, original defendants Nos. 1 and 2 and original defendant No. 3.

(2.) On 29-8-1966, Murlidhar Bapuji Valve, the appellant herein, (i.e. the original plaintiff) filed Special Suit No. 127 of 1966 in the Court of Civil Judge (Senior Division), Pune seeking specific performance of an agreement to sell dated 14-2-1966 arrived at between the plaintiff and original defendants Nos. 1 and 2. The plaintiff impleaded Madhavrao Baburao Kathilkute as defendant No. 3 in the said suit in view of defendant No. 3 claiming to be subsequent purchaser of the suit property under sale deed dated 4-8-1966 executed by original defendants Nos. 1 and 2 in favour of defendant No. 3. The plaintiff contended that the defendant No. 3 was not a bona fide purchaser for value without notice of contract dated 14-2-1966. The defendant No. 3 contended that the defendant No. 3 was a bona fide purchaser for value without notice. The plaintiff also made an alternative claim in the plaint for refund of various amounts paid by the plaintiff to original defendants Nos. 1 and 2 and for damages. The defendant No. 1 filed his written statement in the suit. The defendant No. 1 contended that the plaintiff had no right to seek specific performance of the suit agreement as the plaintiff has no funds at the material time and as the period of the suit agreement had expired. Thus the defendant No. 1 disputed that the plaintiff was ready and willing to perform the suit contract at all times. The plaintiff has contended throughout that simultaneously with execution of the suit agreement i.e. on 14/02/1966, the defendants Nos. 1 and 2 had handed over actual possession of the suit lands to the plaintiffs as stated in the suit agreement itself and since then the plaintiff is in actual physical possession of the suit lands. The plaintiff contends that the defendants Nos. 1 and 2 handed over possession of the suit lands in favour of the plaintiff. In his written statement, defendant No. 1 denied that the defendants Nos. 1 and 2 had handed over possession of the suit lands to the plaintiff. The plaintiff contended in the plaint that immediately after taking possession of the suit lands in part performance of the agreement, the plaintiff had ploughed the lands and made development therein. The defendant No. 1 disputed the correctness of this averment. The defendant No. 1 contended that the defendant No. 1 had rightly executed the impugned sale deed in favour of defendant No. 3 as the plaintiff had committed breach of the suit agreement and the suit agreement was therefore required to be cancelled and actually cancelled. According to the version of defendant No. 1 in the written statement, the defendant No. 3 is in possession of the suit lands since 4-8-1966. The defendant No. 3 filed his written statement in the suit. The defendant No. 3 contended that on the date when the suit agreement was arrived at between the plaintiff and defendants Nos. 1 and 2, the defendant No. 2 was minor and the suit agreement was therefore not enforceable. The defendant No. 3 thus disputed validity of the suit agreement of which the plaintiff had sought specific performance. The defendant No. 3 contended that the defendant No. 3 was in actual possession of the suit land as a subsequent purchaser for value without notice. The defendant No. 3 contended that the claim of the plaintiff for specific performance was not consistent with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. The defendant No. 3 made alternative submission in the said written statement and also filed a counterclaim. By the said alternative submissions and the said counter-claim, the defendant No. 3 sought a decree for vacant possession and mesne profits against the plaintiff on the footing that the plaintiff was in possession of the suit land. The defendant No. 3 contended that if the Court comes to the conclusion that the defendant No. 3 was not in actual possession of the suit land, the plaintiff may be directed to hand over vacant possession of the suit land to defendant No. 3. The plaintiff filed his reply to the said counter-claim. The plaintiff contended that the suit lands were agricultural lands and the provisions of law contained in Urban Land (Ceiling and Regulation) Act, 1976 did not affect the suit claim. The plaintiff also contended that the plaintiff was in actual possession of the suit lands. The plaintiff contended that the defendant No. 3 had actual notice of the claim and interest of the plaintiff in the suit land. The plaintiff further contended that the defendant No. 3 is deemed to have notice of the suit agreement in view of the fact that the plaintiff was in actual possession of the suit lands. The plaintiff denied that the defendant No. 3 was a bona fide transferee for value without notice. It emerges from the record that according to the defendants' case, the defendant No. 2 attained majority on 3-7-1966 even though it was represented by defendants Nos. 1 and 2 to the plaintiff at all material times that the defendant No. 2 was already a major on the date of the suit agreement. The defendant No. 1 was the natural guardian of defendant No. 2. The defendant No. 1 was father of defendant No. 2. There was no conflict between defendants Nos. 1 and 2 in respect of suit lands at any time.

(3.) The learned trial Judge recorded oral evidence of various witnesses examined on behalf of the plaintiff and defendant No. 3. No oral evidence was led on behalf of heirs and legal representatives of defendants Nos. 1 and 2. The trial Court exhibited various documents produced and proved by the parties.