BHUPENDRABHAI RAMBHAI PATEL Vs. LILABAI MAHADEORAO LABDE

JUDGEMENT

(1.) Heard Shri. De, learned counsel for the petitioner - plaintiff, Shri. Alaspurkar, learned counsel for respondent No.l - defendant No.l and Shri. Patil, learned counsel for respondent No.2 - defendant No.2.

(2.) Shri. De, learned counsel states that the petitioner filed suit for specific performance on the basis of a written agreement and in it made a specific prayer for recovery of possession. He states that only at one place in the plaint, it is mentioned that possession of the suit field was delivered to the petitioner. However, according to him, reading of entire plaint shows that such possession was never delivered. To show that such possession was never delivered, he invites attention to written statement filed by contesting defendant i.e. defendant No. 1 and he also states that defendant No.2, though really not a necessary party, has also accepted that the petitioner - plaintiff is not in possession. In this situation, he contends that objection raised by defendant No.2 to the exhibition of said document i.e. agreement for sale (Exh.51) is misconceived. His contention is, in view of the provisions of Section 35 of The Bombay Stamp Act, 1958, (hereinafter referred to as Stamp Act), as the document was exhibited and admitted in evidence, later on an order impounding it could not have been passed. The document was exhibited on 06.04.2009 and on 29.04.2009, defendant No.2 filed application under Sections 33 and 34 of the Stamp Act ;us J sought an order impounding that document dated 07.06.2002. In above facts, his contention is, when parties before the Court were ad idem about the possession of suit property being with defendant No.l, the trial Court could not have recorded any finding on said application of defendant No.2 till it adjudicated that aspect of possession. He fairly accepts that agreement dated 07.06.2002 contains a stipulation about delivery of possession but in above facts as that stipulation is factually incorrect, it does not constitute an agreement and hence because of that stipulation, the document could not have been impounded.

(3.) Shri. Alaspurkar and Shri. Patil, learned counsel for respective respondents support the impugned order. They have invited attention to relevant findings recorded by trial Court in impugned order dated 14.07.2009 and state that the agreement has been rightly interpreted. Reliance is being placed upon the judgment of this Court in the case of Sheshrao Bhikaji Kale Vs. Damodhar Kukaji Pandhare, 2004 2 ALLMR 880 and Santosh Vs. Pukharaj, 2010 4 MhLJ 22, to substantiate their contentions.