PRABHAKAR BALASA Vs. SUBHASH BABURAO

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the original plaintiff/appellant herein against the original defendants/respondents lierein and challenged the concurrent finding given by both the Courts below whereby, Suit of the appellant for possession was dismissed.

(2.) THIS Second Appeal was admitted on the law point mentioned in the memo of Appeal on 27-2-1992 out of which following substantial question of lawhave been argued by the appellant. "that the Exh. No. 119 should have been held as proved by the learned additional District Judge in view of the fact that the attesting witness govind had categorically deposed that the agreement at Exh. No. 119 was executed by Annasa in favour of Balasa and the same was attested by him and not considering the evidence of Govind by both the Courts below resulted into illegality and perversity and therefore, the judgment and order of the both the Courts below is unsustainable in law and liable to be set aside by this Hon'ble Court. That the learned Additional District Judge has further erred in not considering the aspect that the agreement which is held to be proved by the Appellate Court i. e. partition memorandum dated 24-12-1932 which is Exh. No. 118 on record, refers to the right of pre-emption for the purpose of sale of the suit property by either of the party and therefore not considering the same tantamounts to illegality resulted into perversity and therefore, the order passed by Courts below are deserves to be set aside by this Hon 'ble Court. . That the learned Lower Appellate Court has erred in holding that the exh. Nos. 118 and 119 are not enforceable at law in view of section 10 of the Transfer of Property Act. The Appellant submits that the section 10 could not apply to the covenant of pre-emption and therefore, this is not the case which squarely covered under section 10 and therefore the findings is perverse and thus liable to be quash and set aside by this hon 'ble Court. That the learned Lower Appellate Court has further erred in holding that the claim on the basis of Exh. No. 119 is barred by limitation. The said findings is perverse inasmuch as Article 97 of the Limitation Act prescribes a limitation for a period of one year for the enforcement right of pre-emption and accordingly suit should have been filed within a period of one year from the date of the instrument of sale is registered. That in this case, the suit has been filed within a period one year from the date of execution of sale deed in favour of Defendants 1 to 4 and therefore the suit itself was in time and therefore the findings of both the courts below on the limitation points is a perverse and based on no evidence and the same has been recorded without application of mind and therefore, the judgments of both the Courts below is unsustainable in the law and therefore, the same needs to be quash and set aside by this hon'ble Court. That the learned Lower Appellate Court has further erred in not considering the amendment which was allowed by the Lower Court and which was incorporated in the suit by an application dated 10-4-1979 and further erred in holding that the claim for specific performance of contract is barred by limitation the said finding is based on no evidence and contrary to material on record and provision of law and therefore the order of the learned Lower Appellate Court is illegal and liable to be quash and set aside by this Hon ble Court. That the learned lower Appellate Court has further erred in observing that there is no pleading of plaintiff in respect of readiness and willingness to perform the part of contract, the said observation is bad, as the plaintiff has pleaded before the Lower Court that he is ready to purchase the suit house as per the Exh. Nos. 118 and 119 and therefore, not considering the same by the learned Lower Appellate Court is bad in law and order passed by the Court below is liable to be quashed and set aside by this Hon 'ble Court. " from the above, the basic questions of law can be formulated as under :

(3.) MR. Parsodkar in support of his submissions based on the above law points relied on AIR 1988 SC 881, Roshan Singh and ors. vs. Zile Singh and ors. , mr 1996 (8) SCC 357, Lakhi Baruah and ors. vs. Padma Kanta Kalita and ors. , air 1922 All. 239, Lala Brij Lai and ors. vs. Lala Damodara Das, AIR 1929 All. 667, Debi Dayal vs. Ghasita and ors. , AIR 1964 Patna 214, Bulkan Sah and ors. vs. Ganga Devi Nathani and ors. , AIR 1960 Assam 178, Mahamud Ali Majumdar v. v. Brikodar Nath Nath and ors. and additionally submitted, after going through the evidence and documents placed on the record, to remand the matter for fresh trial.