received on -26/08/2008 registered on 30/08/2008 decided on – 14 ...

1
RECEIVED ON -26/08/2008
REGISTERED ON 30/08/2008
DECIDED ON – 14/08/2009
DURATION 00 Y 11 M 18 D
IN THE COURT OF CIVIL JUDGE ( SR DIVISION) JALNA
(BEFORE N G GIMEKAR)
Spl C S No. 93/2008
EXH.NO.
Dr. Ramprasad s/o Madhavlal Porwal,
Age 57 years, Occ Medical Practitioner
and Agriculture, R/o Balaji Mandir
Road Mondha, Partur, Taluka Partur
District Jalna.
PLAINTIFF
V E R S U S
1 Kedarnath s/o Kashinath Lathi,
Age 52 years, occ Photography
and Agriculture, R/o Kisangunj,
Mondha, Partur,. Ta Partur,
District Jalna.
2 Santosh s/o Digambarrao Kale,
Age 30 years, Occ Agricultue,
R/o Kisangunj, Mondhya,Partur
Taluka Partur, District Jalna
3 Sd Mohmmad s/o Gafoorali,
Age 40 years, Occ Agriculture
R/o Kisangunj Mondha,Partur,
Ta Partur, District Jalna
DEFENDANTS
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CLAIM- Suit for specific performance of contract........
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Mr. G. H Lahoti, Advocate, for the plaintiff
Mr. V V Ingle, Advocate for defendant no. 1
Mr. M. D. Deshpande, Advocate for defendants no. 2 and 3
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2
J U D G M E N T
( DELIVERED ON 14/08/2009)
perpetual injunction.
This is a suit for specific performance of contract and
2 In short plaintiffs case is that defendant no.l Kedarnath
was owner in possession of land Gat no. 154, admeasuring 1 Hec.
22 R, bounded as towards east- Village boundary, towards west-
Land of Kanhaiyalal Ratanlal, towads south- Land Jagannath Lathi
and towards north- Balaji Nagar, situated at Partur, Taluka Partur,
District Jalna. In the month of April 2007, defendant no.l
approached the plaintiff and disclosed him that he wanted to sell his
entire agricultural land, as he was in urgent need of money and
wanted to shift at Hyderabad, in connection with business. Plaintiff
agreed to purchase his land for the consideration of Rs. 3,00,000/-.
Defendant no.l executed an agreement to sale on 10/04/2007, after
accepting an amount of Rs. 1,00,000/- as an earnest money.
Defendant no.l delivered the possession of entire l Hec. 22 R land
in favour of the plaintiff. Registered sale deed was to be executed
till month of April 2009, after accepting the balance consideration.
It was also agreed that defendant no.l will bear the expenses of the
sale deed.
In the month of May 2008, defendant no.l approached
the plaintiff and demanded some amount, out of balance
consideration. He has requested the plaintiff to get execute the
registered sale deed of 61 R land. He has assured that he will

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Spl C S No. 93/2008
EXH.NO.
execute the registered sale deed of remaining half portion as per the
terms and conditions of the agreement to sale. Having considered
the need of the defendant no.l, plaintiff paid an amount of Rs.
62,000/- and got executed the registered sale deed No. 1260/2008 on
30/05/2008, for the consideration of Rs. 1,62,000/-, including the
earnest amount. Since the date of agreement to sale, plaintiff is in
possession over entire 1 Hec. 22 R land. But the defendant no.l,
behind the back of the plaintiff executed the registered sale deed of
remaining eastern side half portion, in favour of defendants no. 2
and 3 on 06/08/2008. Defendants no.2 and 3, had purchased the
remaining half portion(hereinafter referred as the suit land),
knowing fully well that plaintiff had agreed to purchase the same.
One Kailash Kale, was attesting witness to the sale deed of the
plaintiff as well as sale deed of defendants no. 2 and 3. Defendants
no. 2 and 3 in collusion with defendant no.l delibaretly got executed
the registered sale deed in order to defeat the rights of the plaintiff.
Plaintiff realiably learnt that sale deed executed by the defendant
no.l in favour of defendants no. 2 and 3 is sham, nominal, without
consideration and possession. On the basis of sham and nominal
sale deed, defendants no. 2 and 3 started obstruction in the
possession of the plaintiff over the suit land. Hence, this suit for
specific performance of contract and perpetual injunction
restraining the defendants from causing any sort of interference in
the peaceful possession of the plaintiff over the suit land.

4
3 Defendants no. 2 and 3 filed their written statement of
defence at exh. 20 and inter alia denied all the adverse allegations.
They have admitted that defendant no.l was owner in possession of
land Gat no. 154 to the extent of 1 Hec. 22 R, situated at Partur.
They have denied that defendant no.l agreed to sell the entire l Hec.
22 R land in favour of the plaintiff and executed an agreement to
sale as alleged. They have contended that plaintiff and defendant
no.l colluded each other and in order to defeat their rights, prepared
false anti dated agreement to sale. They have further contended that
though it has been mentioned in agreement to sale that possession
was delivered in favour of the plaintiff. However, no possession was
delivered in favour of the plaintiff as claimed. In fact, they are in
possession over the suit land. They have contended that plaintiff has
purchased western side 61 R land from the defendant no.l under
registered sale deed dated 30/05/2008. Lateron, defendant no.l sold
the suit land in their favour under registered sale deed and delivered
the possession. Since then, they are in possession over the suit land.
As suit land is in their possession, question of obstructing in the
peaceful possession of the plaintiff doesnot arise. Theyhave
contended that at the time of sale deed dated 30/05/2008, no
agreement to sale was in existence. They have contended that
plaintiff did not raise any objection at the time of sale deed, in their
favour. Even, he did not raise any objection, while mutating their
names in the record of rights. On the basis of registered sale deed in
their favour, their names have been mutated in the record of rights.
Plaintiff has no concern whatsoever, with the suit land. They have
further pleaded that they had created the plots in the suit land. As
the prices of the immoveable properties have increased, plaintiff and

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Spl C S No. 93/2008
EXH.NO.
defendant no.l in collusion with each other filed instant suit, on the
basis of fabricated document of agreement to sale. On these lines,
they have prayed for dismissal of the suit.
4 Initially defendant no.l remained ex parte. However, at
the time of arguments, he has filed an application to set aside ex
parte order and permit him to participate in the proceeding. His
prayer was allowed and he was permitted to participate in the
proceeding. Defendant no.l filed his consent written statement of
defence at exh. 61 and prayed to decree the suit.
5 From the rival pleadings of the parties, issues were
framed at exh. 32 and I have recorded my findings thereon with
reasons by reproducing them as follows-
ISSUES
FINDINGS
1 Does the plaintiff prove that defendant no.l
agreed to sell land Gat no. 154 admeasuring
l Hec. 22 R in his favour for the consideration
of Rs. 3,00,000/-?
No
2 Does the plaintiff further prove that on
10/04/2007, defendant no.l executed an
agreement to sale by accepting an amount
Rs. 1,00,000/- as an earnest money and put
him into the possession?
No

6
3 Does the plaintiff further prove that in the
month of May 2008, defendant no.l
approached the plaintiff and demanded
part payment and assured to execute the
registered sale deed of half portion of
Gat no. 154?
4 Does the plaintiff further prove that
defendant no.l accepted an amount of
Rs. 62,000/- and executed the registered
sale deed No. 1260/2008 of the eastern
side portion of Gat no. 154, for the
consideration of Rs. 1,62,000/-?
5 Does he further prove that western
side remaining 61 R land is in his
possession on the basis of an
agreement to sale?
6 Does he further prove that defendant no.l
had agreed to execute registered sale deed
of remaining half portion as agreed after
receiving the balance consideration of
Rs. 1,38,000/-?
7 Does he further prove that defendant no.l
executed registered sale deed in favour
of defendants no.2 and 3 of the remaining
land on 06/08/2008?
8 Does plaintiff prove that defendants no.
2 and 3 purchased the suit land knowing
fully well that defendant no.1 executed
No
Yes
No
No
Yes

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Spl C S No. 93/2008
EXH.NO
an agreement to sale in favour of the
plaintiff?
No
9 Does the plaintiff prove that he is in
possession over the suit land?
No
10 Does he further prove that sale deed
executed by defendant no.l in favour
of defendants no. 2 and 3 is null, void
and not binding on him?
No
11 Does the plaintiff prove that he is ready
and willing to perform his part of contract? No
12 Do defendants prove that suit land is in
their possession?
Yes
13 Do they prove that in order to defeat their
valuable rights, plaintiff and defendant no.l
in collusion with each other, prepared anti
dated agreement to sale?
Yes
14 Does the plaintiff prove that on the basis
if sham and nominal sale deed, defendants
no. 2 and 3 are obstructing in his possession? No
15 Do defendants prove that after the sale deed
in their favour, they had developed the suit
land and divided it into the plots? No
16 Is plaintiff entitled to the reliefs claimed? No
17 What relief, costs and order? As per final order

8
R E A S O N S
6 The facts which are not disputed or otherwise established
by the parties, can be narrated as follows-
Defendant no.l Kedarnath was owner in possession over
the land Gat no. 154, admeasuring 1 Hec 22 R, more particularly
described in plaint para no.l, situated at Partur. He had executed
registered sale deed no. 1260/2008, of the eastern side half portion
out of Gat no. 154, in favour of the plaintiff, for the consideratio0n
of Rs. 1,62,000/- and put him into the possession. It is also not
undisputed that on the basis of above sale deed, plaintiff is in
possession of eastern side half portion. Thereafter, on 06/08/2008,
defendant no.l executed sale deed of the suit land in favour of the
defendants no. 2 and 3, for the valuable consideration of Rs.
6,08,000/-. At present plaintiff is in possession over the eastern side
half portion. Defendant no.l now has no concern whatsoever with
the suit land.
7 Plaintiff claims that in fact he has agreed to purchase the
entire l Hec. 22 R land for the consideration of Rs. 3,00,000/-.
Defendant no. l accepted an earnest amount of Rs. 1,00,000/- and
executed an agreement to sale on 10/04/2007 and put him into the
possession over the entire l Hec. 22 R land. He further claims that
defendant no.l approached him and demanded amount, out of
balance consideration and became ready to execute the registered
sale deed of eastern side half portion. He has paid Rs. 62,000/- to
the defendant no.l and got executed sale deed of eastern side half
portion. Defendant no.l agreed to execute the registered sale deed of

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Spl C S No. 93/2008
EXH.NO
remaining half portion i e suit land. as per the terms and conditions
of an agreement to sale. However, sold it in favour of defendants
no. 2 and 3. He claims that the sale deed in favour of defendants no.
2 and 3 is without possession. As against this, it is the claim of the
defendants no. 2 and 3, that the so called agreement to sale is
fabricated anti dated document. They have purchased the suit land
under the registered sale deed for the valuable consideration of Rs.
6,08,000/-. Defendant delivered the possession to them and since
then they are in possession over the suit land.
8 In order to substantiate his claim, plaintiff has examined
in all two witnesses including himself and relied upon certain
documents, which will be referred at appropriate places.
Defendants no. 2 and 3 also examined in all two witnesses and
relied upon several documents, which will be referred at appropriate
places.
AS TO ISSUES NO. 1,2,3,5,6, ANDE 13-
9 All these issues are inter linked to each other, therefore,
taken up for discussion together. Plaintiff Ramprasad Porwal ( P W
1) filed his affidavit of examination in chief at exh. 38 and deposed
in terms of plaint averments. He has produced and proved certified
copy of the sale deed (exh. 46) dated 06/08/2008. He was subjected
to the detailed cross examination. His cross examination discloses
that defendant no.l was residing
infront of Balaji Mandir, Partur.

10
Plaintiff was also residing in the same area. It reveals that the
ancestral house of the defendant no.l was fallen to the share of his
brother and now no immovable property is standing in his name at
Partur. It further reveals that defendant no.l is dealing in a business
of photography and now settled at Hyderabad. It further reveals that
since last 25 years, plaintiff was looking after the defendant no.l's
land. In fact it was being cultivated by the brother of the defendant
no.l and plaintiff was just assisting him. It seems that relations
between the plaintiff and defendant no.l, were cordial. He has
denied that as and when defendant no.l used to visit Partur, he used
to stay at his home. He has stated since 06/08/2008, his relations are
strained with the defendant no.l. He has specifically stated that on
06/08/2008, defendant no.l came at Partur, but did not visited him.
He has specifically deneid that even on 06/08/2008, defendant no.l
had stayed at his house and executed registered sale deed of the suit
land in favour of the defendants no. 2 and 3. He has stated that
necessary stamp for agreement to sale was purchased by one Hamid
Bin Chaus, who is his friend and deals in a ploting business. He has
denied that agreement to sale (exh.41) is a fabricated document. It
reveals that agreement to sale (exh.41) is in his own handwriting
and was prepared at his own house. He has stated that after the
agreement to sale, he did not published any public notice in daily
newspaper, disclosing that he had entered into an agreement to sale
with the defendant no.l, regarding the land Gat no. 154. He has
specifically admitted that he did not request the revenue authority to
mutate his name in the cultivation column, on the basis an
agreement to sale. He claims that after 4 days, he learnt about the
registered sale deed in favour of defendants no. 2 and 3, through the

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Spl C S No. 93/2008
EXH.NO
sister of the defendant no.l. He admits that sister of the defendant
no.l had file a suit for partition before the Civil Judge, Partur.
However, he was not arrayed as a defendant. He has stated that after
the sale deed, in favour of the defendants no. 2 and 3, he did not
personally visit the defendant no.l an asked him as to why he had
executed sale deed of the suit land in favour of defendants no. 2 and
3. It further reveals that even he did not issue legal notice to the
defendant no.l. He has stated that on the information supplied by the
brother of the defendant no.l, he is claiming that sale deed in favour
of defendants no.2 and 3 is sham and nominal. It was suggested that
defendant no.l is his maternal uncle. It was further suggested that as
they colluded each other, plaintiff is denying
between the defendant no.l.
the relationship
10 Minute perusal of the evidence of this witness discloses
that his relations with the defendant no.l, were cordial. Not only his
relations were cordial with the defendant no.l, but also he used to
help in cultivation of the land Gat no. 154. It appears that even, the
brother of the defendant no.l was not residing at Partur and has been
settled at Hyderabad. Plaintiff pleaded that sale deed executed by
the defendant no.l in favour of defendants no. 2 and 3, is sham and
nominal. But during the cross examination, he has stated that he has
pleaded so on the basis of information supplied by the brother of the
defendant no.l.

12
11 Defendant no.l initially remained absent. But lateron
appeared and filed his consent written statement of defence. Plaintiff
is claiming that defendant no.l is in collusion with defendants no. 2
and 3 and therefore, executed registered sale deed in their favour.
However, defendant no.l is supporting the plaintiff by filing the
consent written statement of defence, that itself shows that plaintiff
is in collusion with the defendant no.l and not with the defendants
no. 2 and 3.
12 Badrinarrayan Laxminarayan Kabra ( P W 2) is a alleged
witness to an agreement to sale(exh.41) dated 10/04/2007. He has
filed his affidavit of examination in chief at exh. 39 and deposed
that he knew the parties to the suit and suit land. He went on
deposing that on 10/04/2007, defendant no.l executed an agreement
to sale in favour of the plaintiff and it was agreed that defendant no.l
will execute registered sale deed of his entire land in the month of
April 2009. He has claimed that on very same day, plaintiff was put
into the possession over entire l Hec. 22 R land. This witness has
proved an agreement to sale(exh.41). He was subjected to the
detailed cross examination. His cross examination discloses that he
is residing at Mondha area Partur and the Balaji Nagar is at the
distance of only one furlong. It further reveals that brother of the
defendant no.l is residing in Mondha Area Partur. This witness is
unable to tell the four boundaries of the land Gat no. 154. He claims
that area of the suit land is l Acre and defendant no.l is still owner
thereof. It seems that this witness is not agriculturist and not having
any agricultural land, nearby the suit land. He has specifically
admitted that he used to visit the suit land as plaintiff is his friend,

13
Spl C S No. 93/2008
EXH.NO
but unable to tell what crop was taken by the plaintiff in the suit
land in the last year. He has stated that he did not know his
negotiation talk took place between the plaintiff and defendant no.l.
He has stated that agreement to sale is in the handwriting of the
plaintiff. He did not know, who had purchased the necessary stamp.
He has denied that plaintiff being his friend, assisted him in
preparing the forged document of agreement to sale. This witness is
a close friend of the plaintiff and did not know details of the
transaction, therefore, his testimony does not inspire confidence in
the mind of this Court.
13 Defendant no. 2 Santosh Digambarrao Kale ( D W 1)
filed his affidavit of examination in chief at exh. 52 and deposed in
terms of his written statement of defence. He has stated that
plaintiff, defendant no.l, Bhagirath Lathi and Badrinarayan Kabra
are the relatives of each other and prepared fabricated agreement to
sale. Plaintiff did not dare to suggest this witness that he himself and
defendant no.l and attesting witness of an agreement to sale, are not
relatives of each other. In fact, above piece of evidence goes
unchallenged.
14 Now only question, which is to be determined that
whether there was negotiation talk between the plaintiff and
defendant no.l, wherein defendant no.l agreed to sell l Hec. 22 R
land in favour of the plaintiff for the consideration of Rs. 3,00,000/-
and executed an agreement to sale (exh.41), by accepting earnest

14
amount of rs. 1,00,000/- and delivered possession of entire l Hec. 22
R land. Plaintiff has produced on record an agreement to sale
(exh.41). Perusal of agreement to sale discloses that necessary
stamp was purchased by one Hamidbin Islam Chaus, for the
defendant no.l on 05/04/2007. It is admitted fact that agreement to
sale is in the handwriting of the plaintiff and signed by Bhagirath
Lathi, who is the real brother of the defendant no.l and Badrinarayan
Kabra. It further reveals that the said agreement to sale was prepared
on 10/04/2007.
15 Minute perusal of the contents of agreement to sale (exh.
41) discloses that defendant no.l had agreed to sell his entire land in
favour of the plaintiff for the consideration of Rs. 3,00,000/-.
Plaintiff has paid an amount of Rs. 1,00,000/- as an earnest amount
and sale deed was to be executed in the month of April 2009, by
paying remaining balance consideration amount. Contents of an
agreement to sale further discloses that entire suit land was given in
possession of the plaintiff. Concluding three lines of the agreement
¢¡¤£¦¥§¡¨ "#$%&'(*)+-,/.0+¡213¡4+-¥§56¡4'07+
©¡£¡¤!
to sale runs as “
N¡4.
8¡4£9:;¡4?)+"@$¥A5;¡4'4:.9B@C! "ED

15
Spl C S No. 93/2008
EXH.NO
friend. Moreover, plaintiff did not examine him before this Court,
so as to throw the lights on an agreement to sale.
16 Plaintiff has also produced on record certified copy of
the sale deed (exh.42) in his favour. Perusal of the contents of the
sale deed discloses that it was executed on 30/05/2008. One Kailas
Digambar Jadhav ( D W 2) and Pavan Subhashchandra Kabra, were
the attesting witnesses. Said sale deed came to be registered on
30/05/2008 at 4.58 p.m. Perusal of the contents of the sale
deed(exh.42) discloses that there is absolutely no reference of an
agreement to sale dated 10/04/2007. It has been mentioned in the
sale deed that the possession of western side half portion was
delivered to the plaintiff. I have already mentioned that there is no
reference of an agreement to sale dated 10/04/2007 in the sale deed.
Had the agreement to sale dated 10/04/2007 was genuine, definitely
its reference would have been there in the sale deed. It could have
been mentioned in the sale deed that possession was already given
to the plaintiff on the basis of an agreement to sale. But there is
absolutely no reference of the said agreement to sale in the sale deed
in favour of fthe plaintiff. It is important to note here that on the
basis of an agreement to sale, the plaintiff did not move the revenue
authority and got mutated his name. Had he been put into the
possession over the entire l Hec. 22 R land, on the basis of an
agreement to sale, definitely he would have get mutate his name in
the cultivation or other rights column.

16
17 Plaintiff claims that defendant no.l is in collusion with
defendants no. 2 and 3. I have already mentioned that defendant no.l
was ex parte. But at the fag end of the litigation, he appeared and
requested to set aside the ex parte order and filed consent written
statement of defence in favour of the plaintiff. Defendants no. 2 and
3 come with a specific plea that defendant no.l is a maternal uncle of
the plaintiff and in collusion with each other, theyhave prepared the
anti dated agreement to sale. Both of the attesting witnesses on
agreement to sale are appears to be a close relatives of the plaintiff
and defendant no.l. Moreover, there is no reference of an
agreement to sale in the sale deed of the plaintiff dated 30/05/2008.
Had there been any agreement to sale dated 10/04/2007, definitely it
would have been reflected in the sale deed (exh.42). Moreover, the
plaintiff could have got mutated his name to the 7/12 extract on the
basis of agreement to sale. All the above facts create serious doubt
about the authenticity of the plaintiffs claim. I, therefore, answer
issues no. 1,2,3,5,6 and 13 accordingly.
AS TO ISSUE NO0. 4-
19 Plaintiff claims that he has purchased eastern side 61 R
land under registered sale deed bearing no. 1260/2008 for the
consideration of Rs. 1,62,000/- and he is in possession over the said
61 R land. This fact is not challenged by the defendant no. 2 and 3.
Therefore, no other proof is required to answer issue no. 4 in the
affirmative.

17
Spl C S No. 93/2008
EXH.NO
AS TO ISSUES NO. 7,8,9,10,11,12-
20 It is not in dispute that defendant no.l executed registered
sale deed of the suit land in favour of defendants no. 2 and 3 on
06/08/2008. Plaintiff claims that defendants no. 2 and 3 knowing
fully well that defendant no.l had executed an agreement to sale in
his favour, got executed registered sale deed. He claims that still he
is in possession over the suit land and the sale deed executed by
defendant no.l in favour of defendants no. 2 and 3 is null, void and
not binding on h im. He is claiming that still he is ready and willing
to perform his part of contract. I have already held while discussing
issues no.l,2,3,5,6 and 13 that plaintiff failed to prove that he had
agreed to purchase the entire l Hec. 22 R land out of Gat no. 154 for
the consideration of Rs. 3,00,000/-. I have also held that plaintiff
further failed to prove that he is in possession over the entire land
Gat no. 154, admeasuring l Hec. 22 R, on the basis of an agreement
to sale. It is admitted position that plaintiff is in possession over the
eastern side 61 R land out of Gat no. 154 under registered sale deed
no.1260/2008. Plaintiff claims that the sale deed executed by the
defendant no.l in favour of defendants no. 2 and 3 is null, void and
not binding on him. He has pleaded that defendant no.l executed
sham and nominal sale deed.
21 I have already mentioned that defendant no.l filed a
consent written statement of defence and requested to decree the
suit. It is admitted
position that defendant no.l has accepted an

18
amount of rs. 6,08,000/- from the defendants no. 2 and 3 and now
saying that the sale deed is null and void. Plaintiff claims that he is
ready and willing to perform his part of contract. But in such cases,
readyness and willingness of the plaintiff has no relevance. Plaintiff
claims that he is in possession over the suit land. Defendants no. 2
and 3 are also claiming that they are in possession over the suit land.
22 Defendant no.2 Santosh Kale filed his
affidavit of examination in chief at exh. 52 and deposed in terms of
his written statement of defence. He was subjected to the detailed
cross examination He has stated that first time, he has purchased
the land for ploting purpose. He has admitted that there are cross
complaints between the plaintiff and him.In his cross examination
he has stated that he is saying that an agreement to sale is
false,because, he had purchased the suit land through the plaintiff
himself. He has furtehr stated that on the very same date, he had
<strong>received</strong> the possession from the defendant no.l. His further cross
examination discloses that after the negotiation, he did not publish
any public notice in daily newspaper. He has denied that he had
knowledge of an agreement to sale between the plaintiff and
defendant no.l.
23 Kailash Gadge ( D W 2) is a witness of the sale deed in
favour of the defendants no. 2 and 3. He has filed his affidavit of
examination in chief at exh. 55 and deposed that he knew the
plaintiff and defendant no.l since long. He has specifically deposed
that plaintiff is a maternal uncle of the defendant no.l. He went on

19
Spl C S No. 93/2008
EXH.NO
deposing that defendant no.l executed registered sale deed of the
suit land in favour of the defendants no. 2 and 3 and put them into
the possession. He was also subjected to the detailed cross
examination. It appears that this fellow was also attesting witness to
the sale deed in favour of the plaintiff. It was suggested to this
witness that while drafting the sale deed in favour of the plaintiff,
they had an agreement to sale. However, he has denied the same. It
appears that on the complaint of the plaintiff, non-cognizable
offence has been registered against this witness. He has stated that
after the registered sale deed, they immediately went to the suit land
and defendant no.l showed the four boundaries of the suit land. The
specific question was put to this witness, whether the plaintiff
signed the sale deed, in favour of the defendants no. 2 and 3. This
witness is replied that defendant no. 2 and 3 did not request the
plaintiff to sign the sale deed in their favour as a witness. He has
stated in his cross examination that plaintiff was present at the time
of sale deed. He has denied that plaintiff was put into the
possession of entire l Hec. 22 R. at the time of an agreement to sale
itself.
24 Learned Advocate Mr. G H Lahoti, appearing on behalf
of the plaintiff submitted that defendants did not plead that plaintiff
was present at the time of registered sale deed in their favour.
Therefore, improvement made by them is requires to be debarred
from the record. He has relied upon a case of “ Sanjay Gera Vs
Haryana Urban Development Authority and anr, 2005(2) Civil

20
Court Cases, 97( S C)”, wherein Hon'ble Apex Court has held that
in a civil suit all facts have to be pleaded and proved.
Learned Advocate Mr. G H Lahoti, appearing on behalf
of the plaintiff submitted that defendants claim that they are
bonafidfe purchasers for the value without notice. Therefore, burden
lies on them to prove the same. He has relied upon a case of
“Bhuru alias Bhura Ram Vs Sube Singh & ors, 2008(2) Civil Court
Cases 787 ( P & H)”, wherein it has been held that mere denial by
the transferee that he had no notice of the previous contract for sale
will not discharge the onus casted on him.
He has also relied upon a case of” R K.Mohammed
Ubaidullah and Ors Vs Hajee C Abdul Wahab ( D) by L Rs and
Ors., 2000(2) Apex Court Journal, 2999 ( S C )”, wherein it has
been held that onus of proof of good faith is on the purchaser who
takes the plea that he is an innocent purchaser.
He has also relied upon a case of, “ M M S
Investments, Madhurai and Ors Vs V V Veerappan and ors, 2007(2)
Apex Court Judgments 456 ( S C)”, wherein Hon'ble Apex Court
has held that plea of ready and willingness is not available to the
subsequent purchaser.
He has also relied upon a case of, “ Prakash Chandra
vs Angadlal and others, AIR 1979 Supreme Court 1241”, wherein it
has been held that the ordinary rule is that specific performance
should be granted. It ought to be denied only when equitable
considerations point to its refusal and the circumstances show that
damages would constitute an adequate relief.
In a case of” Dilip Bastimal Jain Vs Baban Bhanudas
Kamble and others, 2001(3) Mh L J.730”, , Hon'ble High Court has

21
Spl C S No. 93/2008
EXH.NO
held that in a suit for specific performance of contract, subsequnent
transferee to be impleaded as parties without seeking any specific
declaration against them.
In a case of, “ Rajendra Kantilal dalal vs Bombay
Builderrs Co ( P ) Ltd. And others, AIR 2002 Bombay 408”, it has
been held that specific performance can be enforced against the
subsequent purchaser.
It is pertinent to note here that defendants no. 2 and 3 did
not claim that they are bonafide purchasers for value without notice,
but pleaded that agreement to sale is forged document. They have
denied the existence of an agreement to sale, therefore, authorities
cited above are not applicable to the case in hand.
25 As against this learned Advocate Mr. M. D. Deshpande,
appearing on behalf of defendants, relied upon a case of Mahajan
and Anr vs State of H. P. 1999(2) Civil Court Cases, 598 ( H.P)”,
wherein it has been held that oral evidence can be rebutted by the
presumption of the truth attached to the record of rights.
In a case of, “ Parakunnan Veetill Josephs son Mathew
VS Nedumbara Kuruvilas son and others, AIR 1987, Supreme Court
2328”, Hon'ble Apex Court has held that the court should
meticulously consider all facts and circumstances of the case. The
court is not bound to grant specific performance merely because it is
lawful to do so. The motive behind the litigation should also enter
into the judicial verdict.

22
In a case of, “ Lourud Mari David and others Vs Louis
Chinnaya Arogiaswamy and others, AIR 1996(S C ) 2814(1)”,
wherein Hon'ble Apex Court has held that the party who seeks to
avail of the equitable jurisdiction of a court and specific
performance being equitable relief, must come to the court with
clean hands. In other words the party who makes false allegations
does not come with clean hands and is not entitled to the equitable
relief.
26 If we considered the evidence on record carefully,
defendant no.l appears to be in collusion with the plaintiff. He had
already disposed of 61 R land in favour of plaintiff under registered
sale deed (exh. 42) dated 30/04/2008 and delivered the possession.
It further reveals that immediately, thereafter he had executed
registered sale deed of suit land in favour of defendants no. 2 and 3
and delivered the possession. I have already mentioned that there is
no reference of an agreement to sale in the sale deed of plantiff. Had
there been any agreement to sale, definitely there would have been
reference of it in the sale deed. Even, if for the sake of arguments it
is assumed that an agreement to sale was there in favour of the
plaintiff, but concluding para of the agreement to sale authorises the
plaintiff to sell the land of the defendant no.l to anybody. In other
words plaintiff was authorised to sell the land of the defendant no.l
to anybody. Therefore, possibility cannot be ruled out that plaintiff
might have participated in the negotiation talk with the defendants
no. 2 and 3 and might have remained present for the sale deed.
Plaintiff and defendant no.l appears to be a close relatives. Had they
been not relatives, defendant no.l would have not authorised the

23
Spl C S No. 93/2008
EXH.NO
plaintiff to sell his land on the basis of agreement to sale. Thus, I
have no hesitation to say that defendant no.l executed registered sale
deed in favour of the defendants no. 2 and 3. I have also not
hesitation to say that plaintiff failed to show that defendants no. 2
and 3 purchased the suit land knowing fully well that defendant no.l
has already executed an agreement to sale in his favour. Plaintiff
also failed to show that he is in possession over the suit land and
sale deed is sham and nominal. I have already mentioned that
question of ready and willingness does not arise in the instant case,
as defendant no.l has already disposed of the suit land in favour of
the defendants no. 2 and 3 and now filing consent written statement
of defence in favour of the plaintiff. I therefore, answer issues no.
7,8,9 .10,11 and 12 accordingly.
AS TO ISSUE NO. 14
27 I have already held while discussing the above issues
that plaintiff failed to prove his possession over the suit land, on the
basis of an agreement to sale. Therefore, question of obstructing the
possession of the plaintiff on the basis of sham and nominal sale
deed does not arise. I therefore, answer issue no. 14 accordingly.
AS TO ISSUE NO. 15
28 Defendants claims that they had developed the suit land
and divided it into the plots. Except bare words of the defendants,

24
there is absolutely no material on record to show that really they had
developed the suit land and converted it in non-agricultural use.
There is absolutely no material on record to show that any lay out
has been sanctioned by the competent authority. Thus, defendants
failed to prove that they have developed the suit land and divided
into the plots. Hence, I answer issue no. 15 in the negative.
AS TO ISSUE NO. 16-
29 I have already held that plaintiff failed to prove that
defendant no.l had executed an agreement to sale in his favour of
the entire l Hec. 22 R. out of Gat no. 154, and put him into the
possession. I have also held that defendants no. 2 and 3 purchased
the suit land and since then, are in possession. As plaintiff failed to
prove an agreement to sale in his favour, therefore, he is not entitled
to the reliefs claimed. Therefore, suit deserves to be dismissed. I
therefore, answer issue no. 16 accordingly and proceed to pass
following order-
O R D E R
1 Suit stands dismissed with costs.
2 Decree be drawn up accordingly.
Sd/-
Date 14/08/2009
(N. G. Gimeakr)
Civil Judge ( S D )
JALNA.

25
Spl C S No. 93/2008
EXH.NO
C E R T I F I C A T E
I affirm that the contents of this PDF file are word to
word as per original Judgment.
Name of Stenographer-
Name of Court-
S P Gavhane
Date 14/08/2009
Civil Court ( S D ) Jalna
Sd/-
( S P Gavhane )
Stenographer( L G )
Civil Court (S D) Jalna.