Shri Ramdas M. Handore & Ors. v. Shri Narayan D. Pawar & Anr.

2 Appellants (Plaintifss instituted the suit for possession of the suit lands described in paragraph 1 of the plaint. Plaintifs would assert that vide two agreements dated 19th Aprils 2001 and 7th Decembers 2001s they had agreed to sell the suit lands to the defendants on distinct termss conditions and for consideration stated therein. Vide agreement dated 19th Aprils 2001s possession of the land admeasuring 8 R and vide agreement dated 7th Decembers 2001s possession of the land admeasuring 0.02 R of Survey No.72/4 was handed over to the defendants. Vide Clause (11s and (14s of the agreementss plaintifs had agreed to secure requisite permissions for executing the sale deeds at their costs including the Nazrana or premium payable for conversion of occupancy class. Plaintifs allegeds breach of agreement terms and unauthorised use and illegal construction on the suit lands. On these groundss they sought decree of possession. Defendants made counterclaim and sought decree of specifc performance of agreements dated 19th The Trial Court dismissed the suit; but decreed the counterclaim. Appellate Court confrmed the decree of the Trial Court on 4th Decembers 2009. Feeling aggrieveds plaintifs have preferred this Second Appeal.

3 Mr. Hardass learned counsel for the appellantss submitted that the Courts below erred in dismissing the suit only on the ground that the plaintifs did not seek relief of cancellation of agreements dated 19th Decembers 2001. In support of this submissions Mr. Hardass learned counsel for the appellants has relied on the judgment of the Hon’ble Apex Court in the case of Corporation of the City of Bangalore v. M. Papaiah and Another[1]. Facts of the said case weres that 1 (1989) 3 Supreme Court Cases 612 suit for perpetual injunction was decreed by the Trial Court. Howevers the First Appellate Court dismissed the suit on the ground that it was not maintainables as the relief claimed was limited to permanent injunction without seeking decree to declare the plaintifs’ title. In the context of these factss it was held that suit cannot be dismissed on the ground that relief of declaration of title and possession has not been specifcally mentioned in the plaint. But to say plaint was clearly indicative of foundation of claim of the plaintifs which they have pleaded in express terms.. In the case at hands defendants constructed house on the suit land nine years before and plaintifs vide letter dated 19th Januarys 2002 addressed to Electricity Board acknowledged construction of house and consented for installing electricity meter in the house. More sos vide another letter addressed to Corporations plaintifs consented to supply water connection. So far as the pleadings in the plaints paragraphs 5 and 6s plaintifs would plead and assert that defendants have changed the user of the suit lands contrary to the terms of the agreements and also failed to perform agreements by declining to pay balance consideration. It appears from paragraph 6s that plaintifs were apprehensive that defendants would make additional construction on the suit lands. Whereas in paragraph 7s it is pleaded that on 13th defendants demanded thirty Lakhs from the plaintifs to hand over possession of the suit lands. On the afrmation of these factss plaintifs sought vacant possession of the suit lands. As stated aboves plaintifs did not seek relief of cancellation of the agreements. In facts it can be discerned from reading of the plaint that plaintifs were aggrieved either because defendants did not pay balance amount of consideration or they were likely to make additional construction. Herein evidence suggestss defendants had constructed house on the suit lands in 2000-01 and it was within the knowledge of the plaintifs. For the reasons not knowns suit was instituted nearly after nine years and that too without seeking relief of rescission of agreements. Evidence also suggestss that agreements were acted upon substantially by both the plaintifs and defendants soon after its execution. This could be one of the reasons as to why plaintifs did not seek relief of rescission of contracts. Be that as it mays in the light of pleadingss in my views exclusion of relief seeking cancellation of two agreements was not inconsistent with the pleadings. Yets if submissions of Mr. Hardas are accepteds it would change the entire form and frame of the suit which is impermissible. Resultantlys upon reading the entire plaints I am of the view that the suit was necessarily fled to restrain the defendants from making the construction on the suit lands. In view of the reasons stated aboves the frst contention of Mr. Hardas is rejected.

4 Mr. Hardass learned counsels would submit that there was no cogent and reliable evidence to grant specifc performance of both the agreementss in-as-much as the evidence does not show or establish that the defendants were ready and willing to perform their part of the contract. In support of this contentions he has pointed outs that out of total consideration for two agreementss Rs.2s88s000/- were due and payable as on the date of the institution of the suit. It is pointed out that out of Rs.2s88s000/-s Rs.1s16s000/- weres paid but it was only against agreement dated 19th Aprils 2001. Submission is thats as against the second said agreement dated 7th Decembers 2001s there is no evidence to establish that the defendants were ready and willing to pay balance consideration. In facts evidence is otherwise. Two Courtss have recorded fndings of ‘fact’. Thuss no interference is called for.

5 It is not in dispute that under the agreement dated 19th Aprils 2001s vide Clause (11ss plaintifs had agreed to obtain requisite permissions from the authorities and pay Nazrana/ Premium for conversion of occupancy class. In the light of these stipulations in the agreements I do not see any reasons to interfere with the decree passed by the Courts below.

6 In consideration of the facts and for the reasons stateds appeal does not give rise to any substantial question of law. Appeal is dismissed.

7 As the Second Appeal itself is disposed ofs nothing survives in the Civil Application therein and same is also disposed of. (SANDEEP K. SHINDE, J.)