MANDA PURUSHOTTAM ZATTE Vs. CHANDRAKUMAR PARASMALJI CHORDIYA
LAWS(BOM)-2016-8-195
HIGH COURT OF BOMBAY
Decided on August 05,2016

Manda Purushottam Zatte Appellant
VERSUS
Chandrakumar Parasmalji Chordiya Respondents

JUDGEMENT

- (1.) The respondent No.1Chandrakumar Parasmalji Chordiya is the original plaintiff and he had filed Regular Civil Suit No.93 of 1995 claiming the reliefs as under : "a) Defendant, his family members, his agents, his servants, or any other person on their behalf be restrained permanently from making any interference and obstruction to the enjoyment and cultivation over the field Survey No.16/3; Gat No.54; Area 2 Hec, 57 Are of village Nilapur, Tq. Wani, Distt. Yavatmal by way of permanent injunction. b) Defendants his family members, their agents, their servants, or any other person on their behalf be restrained perpetually from making any interference and obstruction to the cultivation and enjoyment over the field Survey No.16/3; Gat No.54; Area 2 Hec. 57 Are of village Nilapur perpetual injunction. 4-8-2016: c) Any other suitable relief for plaintiff is found entitled may be granted to him. d) Cost of the suit be saddled on the defendant. A decree be drawn accordingly." In para 2 of the plaint, it is averred that the defendent agreed to sell the suit property to the plaintiff for a total consideration of Rs.60,000/- on 2-9-1994 by executing the Isarchitthi and an earnest amount of Rs.45,000/- was paid. The balance amount of Rs.15,000/- was to be paid at the time of execution of the saledeed on or before 31-3-1995. According to the averments made in para 3, the balance amount of Rs.15,000/- was paid on 11-1-1994 and the saledeed was executed on that date by the defendant No.1, which was registered on 14-11-1994 before the SubRegistrar, Wani. The specific averment is that the possession of the suit property was delivered to the plaintiff on the date of execution of the earnest note on 2-9-1994, and since then the plaintiff is in continuous cultivating possession of the suit property. The plaintiff alleged that on 15-6-1995, the defendant No.2 tried to obstruct his possession and, therefore, he was constrained to file the suit on 17-6-1995 after lodging a police complaint, on 15-6-1995 vide Sana Entry No.28/95. It is also alleged that the defendant issued notice dated 13-6-1995 to challenge the saledeed.
(2.) The defendant No.1 neither did file the written statement nor did enter the witnessbox. The defendant No.2, who is the wife of the defendant No.1, opposed the claim and denied the agreement to sell as well as the execution of saledeed and payment of consideration. The defendant No.2 specifically denied that the suit property was delivered to the plaintiff at any point of time and asserted that she has been in continuous cultivating possession of the suit property. She has urged that the defendant No.1, who is her husband, was addicted to vices and gambling and he was indebted to the Society Wani Taluka Kharedi Vikri Samiti Ltd. for misappropriating the amount of the said Society. It is also the stand taken that the defendants have one son and two daughters and the property in question was the ancestral property in the hands of the defendant No.1, who was not competent to transfer it alone.
(3.) The plaintiff entered the witnessbox and examined himself, whereas the defendant No.2 entered the witnessbox and also examined DW 1-Mangal Arjun Bhagade, an attesting witness to the agreement/Isarchitthi dated 2-9-1994, and another witness DW 3-Anandrao Govindrao Matte, an employee in the said Society.;


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