Case Note & Summary
The dispute pertains to land bearing Gat No.1120 admeasuring 38 Are situated at Mouza Pimpalgaon Raja, Taluka Khamgaon, District Buldana. The plaintiff, Govinda S/o Namdeo Jumle, entered into an agreement to sell dated 10.1.2003 with defendant No.1, Rama S/o Bayaji Mali (Amale), for a total consideration of Rs.37,000/-, out of which Rs.1,000/- was paid as earnest money. The sale deed was to be executed by 30.3.2003. However, before the sale deed could be executed, defendant No.1 sold the same property to defendant No.2, Gajanan S/o Namdeo Jumle (the appellant), by a registered sale deed dated 27.1.2003. The plaintiff filed Regular Civil Suit No.48 of 2003 seeking specific performance of the agreement to sell and possession of the suit land. The trial court decreed the suit on 12.12.2007, directing the defendants to execute the sale deed and deliver possession. The first appellate court dismissed Regular Civil Appeal No.8 of 2008 on 6.8.2012, affirming the trial court's decree. The appellant (defendant No.2) then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The appellant contended that the courts below could not have passed a decree for possession without challenging or seeking cancellation of his sale deed. The High Court heard the counsel for both parties. The court noted that the appellant's sale deed was not challenged, but the suit was for specific performance of the prior agreement, which was valid and binding. The court found that the concurrent findings of fact by the trial court and the first appellate court were based on evidence and did not give rise to any substantial question of law. The High Court held that the appellant was not a bona fide purchaser without notice, as he had knowledge of the prior agreement. Consequently, the second appeal was dismissed, and the decree for specific performance and possession was upheld.
Headnote
A) Specific Relief - Specific Performance of Contract - Agreement to Sell - The plaintiff sought specific performance of an agreement to sell dated 10.1.2003 executed by defendant No.1 in his favour. The trial court decreed the suit and the first appellate court dismissed the appeal. The second appeal was dismissed as no substantial question of law arose. Held that concurrent findings of fact cannot be interfered with under Section 100 CPC unless perverse or based on no evidence (Paras 1-6).
B) Transfer of Property Act - Bona Fide Purchaser - Notice - The appellant claimed to be a bona fide purchaser without notice of the prior agreement. However, the courts below found that the appellant had knowledge of the agreement and was not a bona fide purchaser. Held that the finding of fact regarding notice cannot be re-opened in second appeal (Paras 3-6).
Issue of Consideration
Whether the courts below could decree specific performance and direct delivery of possession when the sale deed in favour of the appellant (defendant No.2) was not challenged or sought to be cancelled.
Final Decision
The High Court dismissed the second appeal, upholding the concurrent findings of the trial court and the first appellate court. The decree for specific performance and delivery of possession was confirmed.
Law Points
- Specific performance of contract
- Bona fide purchaser without notice
- Concurrent findings of fact
- Substantial question of law
- Section 100 CPC
Case Details
2014 LawText (BOM) (02) 204
Second Appeal No.276 of 2013
Shri P.S.Wathore for the Appellant, Shri A.V.Bhide for Respondent No.1
Govinda S/o Namdeo Jumle and Rama S/o Bayaji Mali (Amale)
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Nature of Litigation
Second appeal against concurrent decrees for specific performance of an agreement to sell and delivery of possession of agricultural land.
Remedy Sought
The appellant (defendant No.2) sought to set aside the judgment and decree of the first appellate court which affirmed the trial court's decree for specific performance and possession.
Filing Reason
The appellant claimed that the courts below could not have decreed specific performance and directed delivery of possession without challenging or cancelling his sale deed dated 27.1.2003.
Previous Decisions
The trial court (Second Joint Civil Judge Junior Division, Khamgaon) decreed the suit on 12.12.2007 in Regular Civil Suit No.48 of 2003. The first appellate court (Ad hoc District Judge-I, Khamgaon) dismissed Regular Civil Appeal No.8 of 2008 on 6.8.2012, affirming the trial court's decree.
Issues
Whether the courts below could decree specific performance and direct delivery of possession when the sale deed in favour of the appellant was not challenged or sought to be cancelled.
Whether any substantial question of law arose for consideration in the second appeal.
Submissions/Arguments
The appellant argued that the sale deed dated 27.1.2003 in his favour was not challenged or sought to be cancelled, and therefore the decree for possession could not be passed.
The respondent (plaintiff) supported the concurrent findings and contended that no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant's sale deed was not challenged, but the suit for specific performance of the prior agreement was maintainable. The appellant was not a bona fide purchaser without notice, and therefore the decree for possession was valid.
Judgment Excerpts
The present appeal is directed, against judgment and order dated 6.8.2012, passed by the learned Ad hoc District Judge-I, Khamgaon, in Regular Civil Appeal No.8 of 2008, which was dismissed, which arose from judgment and order dated 12.12.2007, passed by the learned Second Joint Civil Judge Junior Division, Khamgaon, in Regular Civil Suit No.48 of 2003, whereby the suit for specific performance was decreed.
Shri P.S.Wathore, learned counsel appearing for appellant Gajanan S/o Namdeo Jumle (defendant No.2), contends that there is substantial question of law on the ground that the Courts below could not have passed the decree directing the defendants to deliver the possession of the suit land to respondent No.1 Govinda S/o Namdeo Jumle (plaintiff) when sale deed dated 27.1.2003 obtained by the appellant was not challenged and sought to be cancelled.
Procedural History
The plaintiff filed Regular Civil Suit No.48 of 2003 for specific performance of an agreement to sell dated 10.1.2003. The trial court decreed the suit on 12.12.2007. The defendants appealed in Regular Civil Appeal No.8 of 2008, which was dismissed by the first appellate court on 6.8.2012. The appellant (defendant No.2) then filed the present second appeal under Section 100 CPC, which was dismissed on 25.2.2014.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Specific Relief Act, 1963:
- Transfer of Property Act, 1882:
