BABURAO KADU AHER Vs. NIMBA NAGOO JADHAV

JUDGEMENT

(1.) BY this appeal, the original Defendant has challenged the decree for delivery of possession and consequential enquiry under Order XX Rule 12 (1) (c) of the code of Civil Procedure into future mesne profit passed by the Civil Judge, Senior division, Nashik, in Spl. Civil Suit No. 55 of 1979. By the same decree, the Defendant's Counter claim for specific performance has been dismissed by the learned Judge. The plaintiff nimba Nagoo Jadhav filed a suit for recovery of possession of agricultural land bearing survey No. 444/2-A which is later on given consolidation block No. 866 and situated at village Devla, Taluka Kalwan Dist. Nashik. There is also a claim for damages amounting to Rs. 8500/ -.

(2.) IT is an admitted fact that the suit land was agreed to be sold by the plaintiff to the defendant for a consideration of Rs. 40,500 by agreement dated 19. 1. 1971 (Exh. 34 ). Rs. 5,000/- were paid to the Defendant at the time of the agreement. It was agreed that if Rs. 20,000/- are paid by 3. 4. 1971, possession would be delivered by the plaintiff to the defendant. By 4. 6. 1971, the Defendant had paid rs 16,500/- and the balance amount was agreed to be paid by 13. 6. 1971. A possession receipt came to be executed. So far as delivery of possession is concerned, there is a dispute, because according to the plaintiff, the defendant took forcible possession after the receipt was executed and according to the defendant, the possession was given to him in pursuance of the possession receipt. The suit land admeasures 4 acres and 9 gunthas equivalent to 1 hector and 71 acres. There are two wells in the said land and in one well there is an electric motor and pump set fitted. It is an admitted fact that By April 1971 or to be more specific even on the date of execution of possession receipt. The Defendant Bhaurao aher had paid only Rs. 16,500/- and it was later on agreed that Rs. 20,250/- would be paid before delivery of possession and at this stage and even the trial court, it was an admitted position that even after the possession reciept was executed, the Defendant was to pay Rs. 3750/- to the plaintiff before 13. 6. 1971 and possession was taken not on the date of execution of the receipt i. e. 3. 6. 1971 but on the next date. It is the contention of the plaintiff that the Defendant took possession on 12. 6. 1971 by taking advantage of the possession receipt obtained by him. According to the plaintiff the period of agreement expired on 3. 11. 1971. the plaintiff was prepared to execute the sale deed by receiving the amount as per the agreement, but the defendant did not complete his part of the contract and did not pay the balance consideration. On the contrary, he issued notice on 21. 7. 1971 and even denied the fact that the plaintiff had exclusive title and asked him to clear the cloud on his title.

(3.) IN the meantime, the plaintiff's brother who had separated from him long back. Ramchandra Nagu Jadhav had filed Regular civil Suit No. 29 of 1971 in the Kalvan Court. It is specifically contended by the plaintiff that this suit was filed by his brother at the instigation of the Defendant and taking advantage of the filing of this suit, the Defendant did not perform his part of the contract and did not complete the sale deed by paying the balance consideration. He however retained possession of the land that he had taken. The suit filed by the plaintiff's brother was dismissed in March 1974. Even thereafter the Defendant did not perform his part of the contract. An appeal was preferred against that decree by the plaintiff's brother, but that appeal also came to be dismissed in 1976. Even thereafter, the defendant did not come forward to perform his part of the contract or to claim specific performance and he claimed it for the first time in the year 1981 by amending his written statement which was filed by him one year back, in which also no such claim was made. In fact the electric motor and the dwelling house which was not separately valued were also taken in possession by the Defendant. The plaintiff issued notice dated 8. 12. 1971 to the Defendant and called upon him to perform the contract. It was returned as there was some mistake in the name of. the Defendant and again it was sent after correcting the name on 20. 12. 1971, whereby the plaintiff demanded the balance of consideration by 3. 1. 1972 and informed the defendant that if the contract is not performed as agreed, the same would stand cancelled due to the default of the Defendant. After receipt of the notice on 21. 12. 1971, the Defendant did not reply. At the time of taking possession there was standing crops in the suit land and the Defendant took possession thereof along with the crops and thereby the plaintiff has suffered loss. The Defendant having committed breach of contract is not entitled to retain possession of the land and the plaintiff is entitled to the possession demages.