KASHIRAM AND ORS. Vs. MANSARAM AND ORS.

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 14th March, 2001 in Regular Civil Appeal No.30/2000 made by the learned 7th Additional District Judge, Nagpur, by which the lower Appellate Court reversed the judgment and decree dated 29.11.1999 in Regular Civil Suit No.32/1994 passed by the Civil Judge, Jr. Dn., Kuhi and decreed the suit filed by the respondents/plaintiffs, the present Appeal was filed by the original defendants.

(2.) Field Survey No.22(old) Gut No.11 admeasuring 6.44 acres situated at Mouza Savangi, Tah.Kuhi, District: Nagpur was originally owned by Mansaram, along with his father Tulshiram and uncle Bala. The appellants agreed to purchase the said suit field vide an agreement of sale dated 17.9.1967 for a consideration of Rs. 4,000/- and the said agreement was executed by all the owners Mansaram, Tulshiram and Bala. The entire amount of consideration, namely, Rs. 4000/- was paid and was received by the respondents and the possession was also handed over to the appellants. Regular Civil Suit No. 93/1975 was filed by the appellants for specific performance of contract of sale dated 17.9.1967 but the suit was dismissed; so also the Appeal preferred before the lower Appellate Court. It is the case of the respondents that after dismissal of their Suit for specific performance of contract, they filed Suit for possession as the appellants refused to hand over the possession and, therefore, the suit in question, namely, RCS No. 34/1994 was filed for possession and damages, on the ground that the appellants had no right to retain the possession. The trial Court dismissed the Suit. The lower Appellate Court, in Appeal preferred by the respondents, allowed the Appeal and held that the appellants were not entitled to retain the possession after having lost in the suit for specific performance of contract and, therefore, the decree for possession in favour of respondents was required to be passed and accordingly the suit was decreed. Hence this Second Appeal.

(3.) In support of the Appeal, Mr. A. C. Dharmadhikari, learned counsel for the appellants vehemently argued that though it is true that the appellants took the plea of adverse possession as well as Section 53A of the Transfer of Property Act,1882 ("T.P.Act" in short) to remain in possession, by way of shield, and though it is a fact that their suit for specific performance was dismissed, the lower Appellate Court could not have decreed the suit for possession as admittedly the entire amount was paid and there was nothing further to be done, except registration of the sale deed. The payment by the appellants of entire amount of Rs. 4000/- towards total consideration and voluntary acceptance thereof by respondent was a clear indication that the appellants had already performed their part of the contract and that the entire payment made by the appellants clearly answered the requirement of Section 53A of the T.P.Act. He relied on the decision of the Hon'ble Supreme Court in the case of Shrimant Shamrao Suryawanshi and another v. Pralhad Suryawanshi, 2002 AIR(SC) 960 and single Judge of this Court in the case of Sakharam Dhale (Died) through LRs. v. Parasram Narayan Shaha-gadkar in Second Appeal No. 317/1990 dated 21.08.2013. He submitted that the decision of the Supreme Court in the case of S.S. Surya-wanshi came after the lower Appellate Court delivered its judgment in the year 2001. Therefore, there was no occasion to cite the said judgment before the lower Appellate Court.