Mahendra S/O Mahadeo Deshbhratar vs. Kailash S/O Bhauraoji Chandankhede

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

...RESPONDENT(

CIVIL APPEAL NOS.13288-89 OF 2015 (@ SPECIAL LEAVE PETITION (CIVIL) NOS. 1216-17 OF 2015)

MAHENDRA S/O MAHADEO DESHBHRATAR AND ORS ...APPELL ANT(S)

VERSUS

KAILASH S/O BHAURAOJI CHANDANKHEDE

S)

O R D E R

	1.	Heard	the	learned	counsels	for	the
	parties.
	2.<br>Leave granted.
	3.<br>These appeals are by the defendants in
	the suit against the decree of reversal passed
	by the First Appellate Court and affirmed by the
	High Court in Second Appeal.
	4.	The plaintiff's		suit was		for specific
	performance	of	an	agreement	dated	20.12.2000
	(Exhibit 30) by and between the plaintiff and
		the First defendant and also for cancellation of
Signature Not Verified	a<br>Sale	Deed	dated	10.04.2001		(Exhibit	31)
Digitally signed by<br>Madhu Bala<br>Date: 2015.11.04<br>17:10:06 IST<br>Reason:	executed by the first defendant in the suit in
	favour of Defendant Nos. 2 & 3.					The aforesaid
	Sale	Deed<br>2	was	in<br>pursuance	of	an	earlier
Agreement dated 21.08.2000 (Exhibit 48) executed
by and between the Defendant No.1 on the one
hand and Defendant Nos. 2 and 3 on the other.
5.		The learned Trial Court held that the
Agreement dated 20.12.2000 (Exhibit 30) by and

between the plaintiff and the First Defendant

was proved. However, in view of the earlier Agreement dated 21.08.2000 (Exhibit 48) and the Sale Deed in favour of Defendant Nos. 2 and 3 pursuant thereto (Exhibit 31), the relief for specific performance was refused. 6. In First Appeal the Appellate Court inter alia held that the Agreement (Exhibit 48) did not exist at the time of execution of the Agreement dated 20.12.2000 (Exhibit 30). The learned First Appellate Court further held that the Agreement dated 21.08.2000 (Exhibit 48) was not admissible in evidence inasmuch as stamp duty thereon as per the Bombay Stamp Act was not paid. On the basis of the aforesaid two findings, the decree of dismissal was reversed by the First Appellate Court which has been upheld by the High Court in Second appeal. 3

7. We have read and considered the order passed by the learned Trial Court as well as those by the First Appellate Court and the High Court through which we have been taken by the learned counsels for the parties. Nowhere in the pleadings brought by the plaintiff there was any averment or claim that Agreement dated 21.08.2000 (Exhibit 48) is not in existence at the time of the subsequent Agreement dated 20.12.2000 (Exhibit 30). That apart, the aforesaid document (Exhibit 48) having been tendered and received in evidence and marked as an Exhibit in the suit, the same could not have been ignored. This is what the High Court has precisely held, though, strangely, by merely conceding a power to the First Appellate Court

to order for specific performance, the impugned decree was upheld and the Second Appeal filed by the defendants was dismissed.

8. As the earlier Agreement dated 21.08.2000 (Exhibit 48) was proved by the evidence on record and the possession of the suit property pursuant to the Sale Deed dated 10.04.2001 (Exhibit 31) had remained with the 4

Defendant Nos. 2 and 3 and further having regard to the fact that the plaintiff was yet to enter into possession, the learned Trial Court was perfectly justified in refusing the relief of specific performance of the Agreement dated 20.12.2000 (Exhibit 30). On the aforesaid view that we have taken, the order passed by the High Court affirming the order of the First Appellate Court will have to be set aside. We order accordingly. 9. Consequently, the appeals are allowed in the above terms. 10. The respondent-plaintiff will be at liberty to avail all such remedies as may be open in law to seek damages/compensation from Defendant No. 1 as well as from Defendant Nos. 2 and 3, if so advised.

.............J. [RANJAN GOGOI]

NEW DELHI ............J. 3RD NOVEMBER, 2015 [N.V. RAMANA] 5 ITEM NO.12 COURT NO.8 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 1216-1217/2015 (Arising out of impugned final judgment and order dated 12/06/2014 in SA No. 293/2009,10/10/2014 in MCA No. 904/2014,10/10/2014 in SA No. 293/2009 passed by the High Court Of Bombay At Nagpur)

MAHENDRA S/O MAHADEO DESHBHRATAR AND ORS Petitioner(s)

VERSUS

KAILASH S/O BHAURAOJI CHANDANKHEDE Respondent(s) (With interim relief and office report) (For final disposal) Date : 03/11/2015 These petitions were called on for hearing today. CORAM : HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE N.V. RAMANA For Petitioner(s) Mr. Satyajit A.Desai,Adv. Ms. Anagha S. Desai,Adv. For Respondent(s) Mr. Manish Pitale,Adv. Ms. Kumar Shivam,Adv. Mr. Chander Shekhar Ashri,Adv. UPON hearing the counsel the Court made the following O R D E R Leave granted. The appeals are allowed in terms of the signed order.

(MADHU BALA) (ASHA SONI) COURT MASTER COURT MASTER (Signed order is placed on the file)