KHUDEJABI UMAR PATEL Vs. AYANUDDIN ABDUL RAZAK

JUDGEMENT

(1.) THIS Second Appeal arises out of the judgment and decree in Regular Civil Appeal No. 326 of 1993, dated 29th July, 1995 passed by the 2nd Additional District Judge, Kolhapur, whereby he dismissed the appeal filed by the appellant herein and thereby confirmed the judgment and decree of the Civil Judge, Senior Division, Kolhapur, dated 30th March, 1993 in Regular Civil Suit No. 84 of 1985 dismissing the said suit filed by the appellant herein. Mr. Patil has appeared for the appellant herein in support of this Second Appeal and Mr. Sakhare with Mr. Dalvi have appeared for Respondent No. 1. Respondent No. 2 is served and is represented by an Advocate, but both of them are not present.

(2.) THE facts leading to this Second Appeal are as follows: - The appellant who filed Regular Civil Suit No. 84 of 1985 is a widow. Respondent No. 1 herein is the brother and respondent No. 1 is her own son who is also the son -in -law of respondent No. 1. The property in this litigation is an agricultural land bearing Survey No. 378, Hissa No. 2/1, which is subsequently numbered as Gat No, 1302, admeasuring 0.92 R., which is situated at Rukdi, Taluka Hatkanangale, District Kolhapur. It is the case of the appellant that she wanted to purchase that parcel of land and hence for that purpose she sold another parcel of land on 27.4.1964 and gave the amount of Rs. 4.000/ - realised therefrom to her brother Le. respondent No. 1. Respondent No. 1 instead of buying this new parcel of land in his sister's name purchased it in his own name on 8.9.1964 from one Ramchandra Balwant Kashid. This purchase from Ramchandra Kashid was however subject to an agreement of reconveyance between Kashid and defendant No. 1 and it was agreed between them that if Kashid would repay the amount of Rs. 4.000/ - by falgun of 1970 then respondent No. 1 would have to reconvey the land to Kashid. It further appears that respondent No. 1 gave a further amount of Rs. 1,000/ - to Kashid and thus the amount of Rs. 5.000/ - was to be paid by Kashid to respondent No. 1 to enable him to get back the land. This was reduced to a writing between Kashid and Respondent No. 1 on 19th October, 1964. However to protect her possession, the appellant got a writing executed from her brother Le, respondent No. 1 on 10th August, 1966 wherein he accepted that the amount of Rs. 4.000/ - which he had paid to Kashid was in fact received by him from his sister i.e. the appellant herein and that in the event, Kashid fails in getting the reconveyance of the land, respondent No. 1 will restore the land back to the appellant herein.

(3.) AS far as the plea of limitation is concerned, Mr. Patil, learned Counsel for the appellant, contended that under the Agreement dated 10th August, 1966, the right of the appellant to get back the land would become ripe only when Kashid failed to get the land reconveyed to him. This happened when he withdrew his suit on 20th September, 1984 and that being so, when the present suit was filed on 25th September, 1984, it could not be said that it was time barred. The submission of Mr. Patil is correct and well taken and there need not be any further deliberation on this aspect. As far as the other submission with respect to the appellant herself having accepted the ownership of respondent No. 1 in an earlier proceeding is concerned, what is relevant to note is that respondent No. 1 in Para 11 of his written statement in the present suit contended that whatever stand was taken in that suit was adopted so that the land does not return to Kashid. He has in terms stated that the tenancy entries in her favour are paper entries. Thus the stand taken by the appellant and respondent No. 1 herein in the earlier suit was a joint stand and respondent No. 1 cannot be permitted to take advantage of that against the appellant herein. Mr. Sakhare, learned Counsel for respondent No. 1, tried to contend that the Agreement of 10th August, 1966 should also be read in the same way and submitted that the appellant should not be permitted to take advantage of that agreement. This submission of Mr. Sakhare cannot be accepted for many reasons. Firstly, the agreement records that the funds for purchase of the new land have come from the sale of land which the appellant owned. It further states that because respondent No. 1 was a member of a Sugar Factory, for convenience his name had been shown as the owner of the land concerned. These aspects are not explained either by respondent No. 1 or by Mr. Sakhare. That being the position, in my view, the Courts below were in clear error in taking the view that the earlier stand taken by the appellant herein ought to be read against her and that she should be estopped from disputing the ownership on respondent No. 1 herein. The appellant could not have disputed the ownership on respondent No. 1 in the earlier suit inasmuch the land did stand in the name of respondent No. 1. Her case was that the same was erroneous and the funds for purchase of the land were given by her and now when as per the agreement between the appellant and respondent No. 1, third party i.e. Kashid had failed to get reconveyance, she was entitled to get specific performance. Section 32 of the Indian Contract Act provides that contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened. On that event happening however the contingent contract can be enforced. This is what is sought by the appellant herein.