PANDURANG GOPALA SATHE Vs. JAGANNATH VITHOBA SATHE

JUDGEMENT

(1.) By the present Second Appeal filed under Section 100 of Code of Civil Procedure, the original defendant . Pandurang through his legal heir is questioning the reversing judgment dated 12.03.1990 delivered by the Additional District Judge, Buldhana in Regular Civil Appeal No. 210/1985. The said Civil Appeal was filed by the present respondent i.e. original plaintiff challenging the judgment and decree dated 12.09.1985 passed by the Civil Judge, Junior Division, Chikhali in Regular Civil Suit No. 37/1986. The respondent had filed the said civil suit for recovery of possession of field survey no.45/2, ad-measuring 30 Acres and 11 Gunthas of village Vairagad. He contended that there was a money lending transaction and he borrowed amount of Rs. 5500/- in 1966 from the defendant/present appellant, as loan. As a security for that amount he gave possession of above mentioned field property to the appellant / defendant for a period of 15 years and he was permitted to reap the crops for a period of 15 years from 1966 onwards towards the principal and interest of the said amount of Rs. 5500/-. The appellant was also permitted to pay the land revenue in relation to the property and the property was to revert back to the plaintiff after 15 years i.e. after repayment of loan and interest upon it without any encumbrances. After 1981 when the defendant did not restore the possession inspite of the demand, suit was filed.

(2.) In reply to the said suit the defendant came up with a case that there was oral agreement for sale between the parties and he paid amount of Rs. 5500/- as complete sale consideration of the suit land. He was accordingly placed in possession thereof and he therefore remained in possession in part performance and his possession therefore was protected as contemplated by Section 53-A of the Transfer of Property Act. The defendant therefore filed a counter claim and stated that he was even on the said date ready and willing to purchase the property and therefore, sought decree for specific performance. The trial Court after appreciating the evidence on record found that the plaintiff before it could not show that it was a money lending transaction and it allowed counter claim of defendant and directed the plaintiff to execute sale deed of suit land in favour of the defendant within a period of one month from the date of order. It also declared that in default the defendant would be in position to obtain the sale deed from Court.

(3.) Aggrieved by this direction, the plaintiff filed Regular Civil Appeal No.210/1985, under Section 96 of Civil Procedure Code, before the Additional District Judge, Buldhana and Additional District Judge, Buldhana dismissed the appeal filed by the plaintiff, in so far as the suit was concerned, however, it also quashed and set aside the direction of specific performance issued in favour of the defendant by the trial court and thus dismissed the counter claim of defendant / present appellant.