KUMAR BEHARAY Vs. RAJESH CHANDRAKANT

JUDGEMENT

(1.) These Revision Applications are filed challenging the order dtd. 9/9/2016 passed by the 11th Civil Judge Senior Division, Pune rejecting Application at Exhibit 41 filed by Defendant No.10 and Application at Exhibit 85 filed by Defendants Nos.1 and 2 seeking rejection of Plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (the Code). Defendant No.10 is aggrieved by the impugned order and has filed Civil Revision Application No. 27 of 2017. Defendants Nos.1 and 2 are also aggrieved by rejection of application of Defendant No. 10 and have filed Civil Revision Application No. 29 of 2017.

(2.) Land bearing Survey No. 69/5B/2, 69/8/1, 70/1 to 17A at Village-Kothrud admeasuring 1,37,790 sq.mtrs was sold by one Raju Maruti Shinde to Defendants Nos.1 and 2 (Vidya Devkule and Shakun Apte) by registered sale deed dtd. 19/7/1964. Land admeasuring 5,000 sq.mts was acquired by the National Highway Authority leaving net land of 1,32,790 sq.mtrs. On 4/1/1975, Defendants Nos.1 and 2 entered into Agreement for Sale with Pushpadant CHSL in respect of land admeasuring 8,362 sq.mtrs. The Agreement however remained in abeyance on account of provisions of Urban Land (Ceiling and Regulation) Act, 1976. On 5/9/1979 Defendants Nos.1 and 2 executed Development Agreement in favour of Mr. Arun C. Bankar and Mr. Vinod R. Dalal in their capacity as trustees of Badri Vishal Trust for development of property within five years. Defendants Nos.1 and 2 addressed notice dtd. 20/10/1984 to the said trustees contending that the Development Agreement had come to an end on account of non-completion of development within five years and the earnest money was forfeited. On 9/5/1986, Defendants Nos.1 and 2 entered into Development Agreement with M/s. Suvidh Enterprises. On 11/5/1989, Defendant Nos.1 and 2 entered into registered agreement with Defendant No.6 and towards part performance, possession of the land was handed over to Defendant No.6. Thereafter, Defendant Nos.1 and 2 conveyed area of 63,596 sq.mts out of the total land in favour of Defendants No.11 by registered Sale Deed dtd. 23/2/1993 by making Pushpadant CHSL and Defendant No.6 as confirming parties. Defendant No.11 secured possession of the conveyed land. Thereafter Defendant No.6 entered into an MOU with Defendant No.11 on 25/2/1993 in respect of the said conveyed land admeasuring 63,596 sq.mtrs under which Defendant No.11 assumed all obligations of Defendant Nos.1 and 2 under Agreement dtd. 11/5/1989. On 28/1/2009 a registered sale-deed was executed by Defendant Nos.1 and 2 in favour of Defendant No.6 in respect of the balance area of 74,294 sq.mtrs. This is how Defendant No. 6 acquired the entire suit property and remained in possession thereof. On 26/3/2013 registered sale-deed was executed by original Defendant No.11 in favour of Defendant No.10 in respect of area of 44,487 sq.mtrs. Defendant No.6 converted itself from partnership firm to that of Limited Liability Partnership which is the name of Defendant No.10 (M/s. Kumar Behere Properties LLP). This is how Defendant No.10 claims possession of the entire land.

(3.) On the other hand, Plaintiff claims that by MOU dtd. 15/1/1982 executed between Mr. Arun Bankar, Vinod Dalal and his father Late Chandrakant Shinde, rights in the suit property were created in favour of his father.