SHEIKH NAGAJI SHEIKH CHATTU Vs. ASHROBA PIRTAJI BHOI

JUDGEMENT

(1.) This Second Appeal is filed by original plaintiff who filed a suit for recovery of possession of suit land bearing survey number 8, known as Chikni, admeasuring 31 acres 5 gunthas to the extent of western half share situated at village Manur, Taluka Manjalgaon. This second appeal raises interesting question of law. The plaintiffs executed Issar Pavati (agreement of sale) in favour of one Pirtaji on 22nd May, 1961 for a consideration of Rs. 3,000/- and he had received Rs. 2,000/- towards earnest money from Pirtaji and had placed him in possession over the suit land. The fact regarding agreement and the possession of Pirtaji is held to be proved by the courts below.

(2.) The plaintiff had filed a Regular Civil Suit Number 69 of 1961 against Pirtaji for recovery of possession of the suit land. The suit was dismissed on 31st January, 1963. It was held in that suit that Pirtaji, the predecessor in title of the defendants, was entitled for possession under section 53-A of the Transfer of Property Act on the basis of agreement of sale and his possession over the suit land. An appeal filed by Pirtaji against the decree passed by the trial Court was dismissed.

(3.) The present suit is filed by the plaintiff against the defendants who are heirs and are claiming through Pirtaji for recovery of possession of the same land which was a subject-matter of Regular Civil Suit Number 69 of 1961. After filing of the present suit, a counter claim is filed by the defendants under the provisions of Order VIII, Rule 6-A claiming decree for specific performance of contract for sale against the present plaintiff. The defendants also claimed the protection of section 53-A of Transfer of Property Act on the basis of their possession under the agreement executed in favour of Pirtaji by the plaintiff, as Pirtaji was in possession of the suit land since the date of agreement, and thereafter, the present defendants continued to be in possession of the suit land till the filing of the suit.