SAKHARAM LAXMAN MATHANE Vs. LAXMAN BAHIRU DIGE

JUDGEMENT

(1.) This is a second appeal filed by the appellant original plaintiff and thereby sought to challenge the concurrent findings given by the Courts below, of dismissing the suit for declaration that the agreement dated 1st February, 1966, was void and illegal and the defendant has no right to retain the possession of the property on the strength of said agreement to sale and prayer for possession of the suit property. The appeal was admitted on 31-8-1989 on the following substantial questions of law;

(2.) The appellant-plaintiff being the owner of the land bearing survey No. 143/11, of village Nade, Tal. Patan, on 1st February, 1966, entered into an agreement for sale in favour of the defendants (Exh. 57). Based on the said agreement the defendants are in possession. The defendants issued the notice and called upon the plaintiff to execute the sale deed. Sometime in the year 1979, a civil suit No. 17/1979 for specific performance was filed by the defendants, as the plaintiff failed to execute the sale deed. On 16-10-1972 the said suit was dismissed for default. Sometime in the year 1973, the appellant preferred the present suit for declaration and possession. The defendants however, by written statement resisted the said suit. The amendment to claim specific performance by way of counter-claim was rejected. The Hon'ble High Court in the revision confirmed the said rejection order. Parties led evidence. By an order dated 19th February, 1982, Civil Judge, Sr. Division Patan (trial Court) dismissed the suit holding that the plaintiff-appellant failed to prove the suit agreement for sale dated 1-2-1966 to be void or bogus. The trial Court further held that the defendants-respondents proved that they are entitled to protect the possession under the provisions of Section 53-A of the T.P. Act, thereby, rejected the prayer of the appellant for possession of suit land.

(3.) The original appellant-plaintiff therefore, preferred, the appeal in the District Court of Satara (Lower Appellate Court). The Lower Appellate Court after considering the rival contentions further declared that the respondents-defendants have proved that they were inducted in the possession of the property in part performance of the agreement for sale and they are entitled to the protection under Section 53-A of the T.P. Act and thereby dismissed the appeal.