BALU KARBHARI DHIKALE Vs. KISAN DEORAM JADHAV

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 26th July 1991 passed by the Additional District Judge, Nashik in Regular Civil Appeal No.330 of 1987 by which the lower Appellate Court reversed the judgment and decree dated 29th October 1986 made by the Trial Court in Regular Civil Suit No.100 of 1983, the present second appeal was filed by the unsuccessful Plaintiffs in this court.

(2.) THE Appellants are the original Plaintiffs who had filed suit for specific performance of contract against the Respondents on the basis of agreement of sale dated 23rd July 1971 Exh. 29 and another agreement dated 3rd April 1972 Exh. 51. In the suit, the Plaintiffs stated that the suit land gut No.384 situated at Mauje Lakhalgaon, admeasuring 8H 28R of all the Defendants was agreed to be sold to the Plaintiffs for total consideration of Rs.14000/ out of which the Plaintiffs had paid Rs.9000/ as earnest amount on the date of agreement dated 23rd July 1971 and that the balance was to be paid after getting necessary permission. The Defendants thereafter needed some more amount and the Plaintiffs paid Rs.4000/ and obtained another document dated 3rd April 1974 evidencing the payment of Rs.4000/. Lastly, the Plaintiffs had paid Rs.1000/ to the Defendants. Thus total consideration was paid. The Plaintiffs had already received possession under the agreement dated 23rd August 1971 and continued to be in possession and also got their names entered into the revenue record but when they asked the Defendants to execute a registered sale deed the Defendants avoided to do so. Hence, the suit was filed. The Plaintiffs even thereafter paid Rs.2369.96 towards bunding charges since the suit land was encumbered. The plaintiffs improved the land. The balance of convenience is in favour of the Plaintiffs and the Defendants would not be put to any hardship.

(3.) THE Defendants appeared in response to the suit summons and filed their written statement and also set up a counter claim for possession of the suit property. It was the case of the Defendants that the agreement of sale was a nominal transaction, never to be acted upon and the Defendants only received Rs.9000/ on 23rd July 1971 Exh. 29 and nothing more and the document was executed by way of collateral security. No other document was thereafter executed nor any thumb impression was put thereon. The transaction being in the nature of money lending; the Plaintiffs were not entitled to any the decree for specific performance. The Defendants do not have any land except the suit land. The prices of the suit land at the relevant time was quite high and the Plaintiffs should not be allowed to be in possession of the land. The suit of the Plaintiffs should be dismissed and the counter claim for possession made by the Defendants should be decreed.