SURESH KAMTE Vs. SADASHIV A BHAPKAR

JUDGEMENT

(1.) These two counter appeals involve substantial question of scope of right to retain possession under the Doctrine of Part Performance of the Contract.

(2.) The facts relevant for deciding the appeals may be stated as follows :

(3.) Special Civil Suit no.665 of 1986 was filed by Suresh Kamte against Sadashiv Bhapkar and his three sons. Since their status are different in two different appeals, they are referred to as per their status in this suit. Suresh Kampte plaintiff is the appellant in Second Appeal No.15 of 2003 while Sadashiv Bhapkar and three others the defendants are the respondents in the said appeal. In the suit, the plaintiff claimed that by agreement to sell dated 15.5.1981 defendant no.1 agreed to sell to him the suit property namely agricultural land of 99 ares bearing survey no.39 Division No.5 later numbered as block no.1055 with well and electric motor of three horse power situate at Loni Kadam, Vakvasti Taluka Haveli District Pune fo Rs.47,000/-. Defendant nos 2,3 and 4 are the sons of defendant no.1. There was a joint Hindu family of the defendants of which defendant no.1 was karta. The suit property was self-acquired property of defendant no.1 with which defendant nos.2,3 and 4 were having no concern., Besides, defendant no.1 put it to sell for family and legal necessities. The plaintiff p;aid Rs.10,000/- out of a consideration of Rs.47,000/- and defendant no.1 put the plaintiff in possession of the suit property thereof along with the standing surgarcane. The plaintiff was always ready and willing to perform his part of the contract. By a registered notice dated 8.9.1981 the plaintiff called upon the defendants to complete the trasnsactions and showed his readiness and willingness to pay the balance amount and bear the expenses of sale deed. Initially, on 17./6.1981 defendant lo.,1 agreed to execute the sale deed on the next day. The plaintiff provided him money and defendant no. 1 purchased stamp paper of Rs.1,85/- and provided the same for typing the sale deed. ON 18.6.1981 the plaintiff and defendant no.1 attended the Sub-Registrar's office Haveli-I Khadakmal Lane, Pune but that time defendant no.1's Advocate Parchpor was not present. The plaintiff went to Shivaji Nagar Court to bring his Advocate but did not return. At the same time, defendant no.l had executed the agreement in respect of other properties in favour of the plaintiff's relatives. Mr.Pachpor Advocate for defendant no.1 met the plaintiff and demanded Rs.5000/-for pursuading his client to execute the sale deed.The plaintiff paid Rs.1000/- to him and agreed to pay the remaining amount after execution of the sale deed. Since the plaintiff did not immediately pay the balance amount, Mr.Parchpor Advocate did not allow the defendants to complete the sale transaction. The plaintiff has paid the out-going expenses of the suit land and the said amount was to be adjusted from the sale consideration as agreed and intimated by notice dated 8.6.1981. Defendant no.1 on 14.9.1981 issued a notice reply to the plaintiff and declined to execute the sale deed stating a ground that the price of the land was deliberately shown lower than the actual price and made allegations about dishonesty of the plaintiff. Later on defendant no.3 on 8.12.1981 issued notice to the plaintiff and other defendants and claimed that during his minority, his father has entered into the transaction. It was ancestral and and belonging to the joint family. Consent of the plaintiff was not taken and there was no legal necessity. The said transaction was not binding on him. The plaintiff issued a reply dated 22.1.1982 and cleared that he had no right in the suit land and the said transaction was binding on him. The plaintiff issued a reply dated 22.1.1981 and cleared that he had no right in the suit land and the said transaction was binding on him. It was executed with the consent of all the family members and the land was self-acquired property of defendant no.1 and hence, no consent was necessary. Defendant no.1 had agreed to transfer the electric meter in the said property in the name of the plaintiff but defendant no.1 in June 1981 caused disconnection of the electric meter and thereby the plaintiff could not grow the crop of sugarcane from June 1981 onwards. He was required to pay Rs.5000/- per year for purchasing water from neighbours. The plaintiff claimed adjustment of these expenses form the price of the suit land. Buy an amendment, the plaintiff claimed that defendant no.1 was supposed to obtain the zonal certificate from the Collector and the said transaction was to be executed within 15 days. Defendant no.1 never obtained such zonal certificate and therefore, the suit was not barred by limitation. Since the advocate for the defendants was assuring to execute the sale deed, the plaintiff waited and hence there was delay in filing the suit. With these pleadings the suit was filed in 1986 for specific performance of the contract, perpetual injunction restraining disturbance of its possession and in the alternative, for refund of Rs.47,000/- and also damages for disconnection of electric supply at the rate of Rs.5000/- per annum to be adjusted from the sale price and perpetual injunction to restrain the defendants from disturbing his possession.