RAMDAS M. HANDORE Vs. NARAYAN D PAWAR

JUDGEMENT

(1.) Plaintiffs, in the Special Civil Suit No.72 of 2014 have preferred this appeal, against the concurrent findings recorded by the two Courts below.

(2.) Appellants (Plaintiffs) instituted the suit for possession of the suit lands described in paragraph 1 of the plaint. Plaintiffs would assert that vide two agreements dated 19th April, 2001 and 7th December, 2001, they had agreed to sell the suit lands to the defendants on distinct terms, conditions and for consideration stated therein. Vide agreement dated 19th April, 2001, possession of the land admeasuring 8 R and vide agreement dated 7th December, 2001, possession of the land admeasuring 0.02 R of Survey No.72/4 was handed over to the defendants. Vide Clause (11) and (14) of the agreements, Plaintiffs had agreed to secure requisite permissions for executing the sale deeds at their cost, including the Nazrana or premium payable for conversion of occupancy class. Plaintiffs alleged, breach of agreement terms and unauthorised use and illegal construction on the suit lands. On these grounds, they sought decree of possession. Defendants made counter-claim and sought decree of specific performance of agreements dated 19th April, 2001 and 7th December, 2001. The Trial Court dismissed the suit; but decreed the counter-claim. Appellate Court confirmed the decree of the Trial Court on 4th December, 2009. Feeling aggrieved, Plaintiffs have preferred this Second Appeal.

(3.) Mr. Hardas, learned counsel for the appellants, submitted that the Courts below erred in dismissing the suit only on the ground that the Plaintiffs did not seek relief of cancellation of agreements dated 19th April, 2001 and 7th December, 2001. In support of this submission, Mr. Hardas, 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 (1989) 3 Supreme Court Cases 612 : [1989 ALLMR ONLINE 429 (S.C.)]. Facts of the said case were, that suit for perpetual injunction was decreed by the Trial Court. However, the First Appellate Court dismissed the suit on the ground that it was not maintainable, as the relief claimed was limited to permanent injunction without seeking decree to declare the Plaintiffs' title. In the context of these facts, it was held that suit cannot be dismissed on the ground that relief of declaration of title and possession has not been specifically mentioned in the plaint. But to say plaint was clearly indicative of foundation of claim of the Plaintiffs which they have pleaded in express terms.