BAKERBAG SUBHANBEG Vs. SHRIKANT LAXMINARAYAN ZANWAR

JUDGEMENT

(1.) Necessity of adjudication of dispute inter se between defendants in suit for specific performance and maintainability of appeal under Section 96 of the Code of Civil Procedure by one of the defendants challenging the findings recorded in favour of other defendant in such suit which has been dismissed against all of them and scope of entitlement of subsequent i.e. lis pendens transferee to join for hearing are the questions argued in this Second Appeal under Section 100 thereof.

(2.) This Appeal is filed by original defendants No. 2 and 3 in Regular Civil Suit 318/1981 challenging the judgment of Lower Appellate Court declaring that sale deeds in their favour vide Exhibits 77 and 78 executed by defendant No. 1 Namdeo are not legal whereby findings about the right, title, interest and possession delivered in their favour by trial Court have been set aside. Namdeo, respondent No. 3 in this Appeal is the original owner of Field Survey Number 120/1 admeasuring 1 Hector 92 R. or 4 acres 28 gunthas at mouza Rahatgaon, pargane Nandgaon Peth, Tahsil and District Amraoti. Regular Civil Suit 318 of 1981 was filed against him by one Shrikant and Vijay together for specific performance of an agreement for sale dated 4-11-1980 (Exhibit 61). Suit was filed on 18-6-1981 and later on plaintiffs discovered that Namdeo had already sold the property on 11-6-1981 to Bakerbeg and Taslimbeg i.e. appellants herein and hence they joined Bakerbeg and Taslimbeg as party defendants in their Suit. Defence of Namdeo in suit was agreement dated 4-11-1980 was not for sale but it was nominal document and real transaction was money lending transaction. He pointed out that sale deeds Exhibits 77 and 78 are also not real sale deeds but only money lending transactions. Present appellants who were added as defendant No. 2 and defendant No. 3 in that Suit contended that their agreement for sale was prior i.e. dated 28-9-1980 (Exhibit 76) and hence, they have rightly purchased the property. Trial Court on 8-8-1985 partly decreed the suit filed by Shrikant and Vijay and directed Namdeo to refund earnest amount of Rs. 1001/- with 10% interest to them. Shrikant and Vijay then filed Regular Civil Appeal 363 of 1985 while Namdeo filed Regular Civil Appeal 402 of 1985. Both the Appeals have been decided by common judgment on 17-1-1994 by Second Additional District Judge, Amraoti. Appeal of plaintiffs was dismissed while Appeal of Namdeo i.e. R.C.A. 402/85 was allowed and the judgment and decree of trial Court to the extent of findings in respect of the right, title, interest and possession of present appellants came to be set aside. Present Second Appeal has been admitted on 5-10-1995 on the question whether "In the suit for specific performance against respondent No. 3 by respondent numbers 1 and 2 could a finding be given regarding validity of a subsequent sale deed between the respondent No. 3 and the present appellants". Respondent numbers 1 and 2 are original plaintiffs Shrikant and Vijay and they have not challenged the dismissal of their Regular Civil Appeal. Civil Application 673-A/1995 was moved by appellants seeking leave to raise/argue Additional question of law as per provisions of Section 100(5), Civil Procedure Code. The additional question as sought only clarifies the substantial question of law already framed and hence that application was allowed on 11-12-2007.

(3.) There are certain other Civil Applications already ordered to be heard at the stage of final hearing of Second Appeal. Civil Application 4512/2004 is moved jointly by present respondent No. 3 Namdeo and present appellants for recording of compromise between them and for disposal of second appeal accordingly. Civil Application 2035/2004 and 5939/2004 are filed by subsequent purchasers from Namdeo for permission to intervene and to substitute themselves in place of Namdeo. By order dated 11-12-2007, these applications are directed to be heard at the stage of final hearing. Civil Application 3721/2006 was moved by applicants in Civil Application 2035/2004 contending fabrication of a false order dated 10-9-2004 showing as if passed on Civil Application 4512/2004 by this Court. As per orders dated 11-12-2007 of this Court, Registrar (Judicial) on 19-12-2007 has submitted a report that there was in fact no such order dated 10-9-2004 and such order was brought into existence by using certified copy of the order dated 17-8-2004. By subsequent order Registrar was permitted to file appropriate report in this respect with the Commissioner of Police, Amraoti and accordingly report has been lodged on 18-1-2008.