TUKARAM LAXMAN KARALE Vs. BABA GOVIND SASE

JUDGEMENT

(1.) This second appeal is preferred by original Defendant No. 2 being aggrieved by the judgment and decree passed by learned Civil Judge, Junior Division, Newasa in Regular Civil Suit No. 376 of 1978 decided on 28.2.1984, thereby declaring that the sale deed executed by Respondent No. 2Original Defendant No. 1 in favour of appellantoriginal defendant No. 2 dated 27.11.1978 is void and illegal and that Respondent No. 1 original Plaintiff Baba s/o Govind case is entitled to specific performance of contract and therefore, Respondent No. 2 original Defendant No. 1 is directed to execute the sale deed in favaour of Respondent No. 1 plaintiff on accepting amount of Rs. 19,000/= from the appellantoriginal defendant No. 2 and the appellant is directed to hand over possession of property to Respondent No. 1 plaintiff. The judgment and decree of the trial court is confirmed by learned 4th Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 91 of 1984 decided on 28.2.1984.

(2.) Some of the facts giving rise to this appeal need to be stated at the outset. Gat No. 39 of village Handi Nimgaon, Taluka Newasa, District Ahmednagar, is the suit property. As per appellant Tukaram, on 15.10.178, Respondent No. 2 Maruti had agreed to sell the suit property to him for Rs. 12,000/= and Rs. 50/= were paid as earnest money. Appellant Tukaram was put in possession of the suit property. Whereas as per present Respondent No. 1Plaintiff Baba, it was an ante dated document of agreement of sale and the agreement of sale between appellant Tukaram and Respondent No. 2 Maruti was subsequent to the agreement of sale with him. It is further case of Respondent No. 1 Plaintiff Baba that Respondent No. 2 Maruti, who was original owner, had agreed to sell the suit property to him for Rs. 20,000/= and executed an agreement of sale on that day. He paid Rs. 1,000/= to Respondent No. 2 Maruti as earnest money. On 27.11.1978, Respondent No. 2 Maruti executed a registered sale deed in favour of appellant Tukaram for Rs. 12,000/= and the document is at Exh 94. On 5.12.1978, Regular Civil Suit No. 378 of 1978 was filed by present Respondent No. 1 Plaintiff in the Civil court at Newasa for specific performance of contract and for declaration that the sale deed dated 27.11.1978 executed by Respondent No. 2 Maruti in favour of appellant Tukaram is illegal and void; and for injunction in the alternative for possession.

(3.) Present appellant resisted the suit and denied that the agreement of sale dated 15.10.1978 produced at Exh.93 was ante dated as claimed by Respondent No. 1 plaintiff. He further alleged and proved that on 17.10.1978 the appellant along with Respondent No. 2 made an application to Bhan Shivara Vivid Karyakari Sahakari Society for granting permission for sale of the suit land and the said Cooperative Society had granted such permission on the same day, by letter Exh. 96. Since the agreement of sale with appellant was prior in point of time to the agreement of sale with Respondent No. 1 original plaintiff, the suit deserves to be dismissed.