Case Note & Summary
The appellant, Smt. Doshmani w/o. Vasantlal Bahoria, filed a Second Appeal against the judgment and order dated 26.4.2007 passed by the Adhoc District Judge-9, Nagpur in Regular Civil Appeal No.401 of 2004, which dismissed her appeal. The appeal arose from the judgment and order dated 29.6.2004 in Special Civil Suit No.795 of 1998, where the Joint Civil Judge (Sr.Dn.), Nagpur had dismissed the suit for specific performance of an agreement to sell. The suit was based on an agreement to sell executed on 9.12.1994 by one of the defendants, Smt. Ayoda Inok Anjore, for a tenement measuring 605 sq.ft. at Chandan Nagar, Nagpur. The plaintiff claimed that earnest money of Rs.20,500/- and later Rs.51,000/- were paid, totaling Rs.71,500/- towards the agreed consideration of Rs.1,10,000/-. The plaintiff contended that the defendants were liable to execute the sale deed. The courts below concurrently found that the plaintiff failed to prove the execution and genuineness of the agreement to sell, and that the suit was barred by limitation. The High Court, after hearing the counsel for the appellant and respondents, found no substantial question of law involved and dismissed the appeal, upholding the concurrent findings.
Headnote
A) Specific Relief Act - Specific Performance - Agreement to Sell - Burden of Proof - Plaintiff failed to prove execution and genuineness of agreement to sell dated 9.12.1994 - Courts below concurrently held that the agreement was not proved and the suit was barred by limitation - Held that no substantial question of law arises (Paras 1-5).
Issue of Consideration
Whether the plaintiff is entitled to specific performance of an agreement to sell dated 9.12.1994, and whether the suit is barred by limitation.
Final Decision
Second Appeal dismissed. No substantial question of law involved. Concurrent findings of courts below upheld.
Law Points
- Specific performance
- burden of proof
- limitation
- agreement to sell
- genuineness of document
- concurrent findings
Case Details
2014 LawText (BOM) (03) 109
Second Appeal No.402 of 2007
Mr. A.S. Ganu for Appellant, Mr. M.B. Naidu for Respondent no.5, Mr. P.P. Kothari for Respondent no.6
Smt. Doshmani w/o. Vasantlal Bahoria
Smt. Ayoda Inok Anjore and others
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Nature of Litigation
Civil suit for specific performance of an agreement to sell
Remedy Sought
Plaintiff sought specific performance of agreement to sell dated 9.12.1994 and execution of sale deed
Filing Reason
Defendants failed to execute sale deed despite payment of consideration
Previous Decisions
Trial court dismissed suit on 29.6.2004; First appellate court dismissed appeal on 26.4.2007
Issues
Whether the plaintiff proved the execution and genuineness of the agreement to sell?
Whether the suit for specific performance is barred by limitation?
Submissions/Arguments
Appellant argued that the agreement to sell was executed and consideration paid, and courts below erred in refusing specific performance.
Respondents argued that the agreement was not proved and the suit was barred by limitation.
Ratio Decidendi
In a second appeal, the High Court will not interfere with concurrent findings of fact unless there is a substantial question of law. The plaintiff failed to prove the agreement to sell and the suit was barred by limitation.
Judgment Excerpts
This Second Appeal is preferred against the judgment and order dt.26.4.2007 passed by Adhoc District Judge9, Nagpur in Regular Civil Appeal No.401 of 2004. The appeal was dismissed.
It is the case of the plaintiff/appellant that earnest money was paid in the sum of Rs.20,500/ and later the sum of Rs.51,000/ was also paid towards the consideration for the agreement.
Procedural History
The plaintiff filed Special Civil Suit No.795 of 1998 for specific performance. The trial court dismissed the suit on 29.6.2004. The plaintiff appealed to the District Court, which dismissed the appeal on 26.4.2007. The plaintiff then filed the present Second Appeal.
Acts & Sections
- Specific Relief Act, 1963:
