SHALINI LAXMAN WADNERKAR Vs. M M KOREGAONKAR

JUDGEMENT

(1.) The appellant is the only surviving legal representative of the deceased plaintiff as his daughter. She has preferred appeal against the common judgment delivered by the Additional Principal Judge, City Civil Court, bombay in Special Civil Suit No. 7708 of 1967 and Special civil Suit No. 1665 of 1979 on 21st September, 1987.

(2.) The facts which are not disputed for the purposes of the present appeal are that one Shri J. R. Gharpure owned land in Survey No. 6 situated at Bamanwada village, vile Parle (East) Bombay. On 21.10. 1958 Shri G. G. Suvarnapathak (the original plaintiff) agreed to purchase plot No. 5, area 557 sq. yards out of the said land. He paid rs. 1,000/- as earnest money to Shri J. R. Gharpure. Shri v. J. Gharpure (the son of Shri J. R. Gharpure) issued a receipt (Exhibit 'a') on behalf of his father in favour of the original plaintiff. On the next day i. e. On 22.10. 1958 the possession of the land was also delivered to the original plaintiff. Earlier to the said agreement there were insolvency proceedings against Shri J. R. Gharpure in which he has adjudicated as insolvent on 16.12.1958. The original plaintiff led his claim for specific performance of agreement dated 21.10. 1958 before the Official Assignee, but his claim was rejected. He was, however, granted leave to file suit against the Official Assignee for specific performance of the agreement. Accordingly the original plaintiff filed suit bearing No. 4684/1961 against the Official assignee for specific performance of the agreement. In the meanwhile the original plaintiff made construction on the said plot in the year 1959 by submitting a plan to the municipal authorities. A portion of the said construction was used for flour and masala mill and the remaining portion was used for residence of the original plaintiff. The original plaintiff used to approach his residence and flour mill through their remaining open plot of the original owner Shri J. R. Gharpure.

(3.) Defendant No. 1 purchased land to the east of the original plaintiff's land in an auction and made huge construction thereon for defendant no. 2. A deed of conveyance was executed in favour of defendant no. 2 on 5.7.1965.