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Tuesday, April 8, 2014

Declaration suit that the agreement of sale dt. 17.08.1995 stood cancelled possession was delivered under it - Trial court dismissed the suit as well as High court also - High court failed to notice that the agreement is old one, except one lakh nothing was paid - for non-removing the entry in revenue record as inam what will be followed as per the terms of agreement not considered - High court totally failed to considered so many aspects - Apex court set aside the orders of lower courts and remanded the case to High court for fresh disposal =Smt. Leela Krishnarao Pansare and others .....Appellants Versus Babasaheb Bhanudas Ithape and others …..Respondents= 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41396

 Declaration suit that the agreement of sale dt. 17.08.1995 stood cancelled  possession was delivered under it - Trial court dismissed the suit as well as High court also - High court failed to notice that the agreement is old one, except one lakh nothing was paid - for non-removing the entry in revenue record as inam  what will be followed as per the terms of agreement not considered - High court totally failed to considered so many aspects - Apex court set aside the orders of lower courts and remanded the case to High court for fresh disposal =

 In our opinion, the High Court should have discussed the  evidence  in
      detail, but somehow the evidence has not been properly discussed or re-
      appreciated by the High Court while dismissing the appeal


   6. Upon perusal of the impugned judgment delivered by the High Court,  it
      is clear that the entire sale consideration had not been paid  but  at
      the same time it is also an admitted fact that the appellants did  not
      get the entry with regard to the “Deosthan Inam” deleted.  There is no
      discussion about the efforts made by the appellants  for  getting  the
      said entry deleted.   The  High  Court  has  also  not  discussed  the
      consequences of non deletion of the said entry and the efforts made by
      the appellants for not getting it deleted.   Similarly,  there  is  no
      definite finding as to how much consideration was  paid  and  at  what
      time or stage.


   7. Even the amount payable by the respondent towards purchase  price  had
      not been paid in full to the appellants and the  said  thing  has  not
      been properly discussed.


   8. We find that the relevant evidence has neither been discussed nor been
      properly appreciated by the High Court.  It was  very  much  necessary
      for  the  High  Court  to  decide  whether  the  appellants  and   the
      respondents had performed their respective duties, which they  had  to
      perform in pursuance of the agreement with regard to sale of the  land
      in question.


   9. In our opinion, without appropriate appreciation of the evidence,  the
      High Court should not have dismissed  the  appeal  and  therefore,  we
      allow the present appeal and remand the matter to the  High  Court  so
      that after hearing the concerned parties, the High Court would take  a
      fresh decision.  As the agreement with regard to sale of the land  had
      been executed before several years, we hope that the High Court  would
      hear and decide the appeal as expeditiously as possible.


  10. The impugned judgment is quashed and set aside with  no  order  as  to
      costs.

 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41396
ANIL R. DAVE, DIPAK MISRA
                                                         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.   4433   OF 2014
                 (Arising out of SLP (C) No. 17533 of 2010)





Smt. Leela Krishnarao Pansare and others           .....Appellants



                                Versus

Babasaheb Bhanudas Ithape and others                 …..Respondents




                               J U D G M E N T




1 ANIL R. DAVE, J.




1.    Leave granted.


2.    Being aggrieved by the judgment delivered in First Appeal No. 1138  of
2009 by the Bombay High Court at Aurangabad on  14.1.2010,   the  appellants
have approached this Court by way of this appeal.


3.    The facts giving rise to the present litigation, in  a  nutshell,  are
as under :


      The appellants had filed a suit against the present respondents for  a
declaration to the affect that the agreement to sell  entered  into  between
the appellants and the respondents should be cancelled  and  the  appellants
should be put in  possession of the land in question, which had been  agreed
to be sold in pursuance of the agreement to sell dated  17.08.1995.  Certain
undisputed facts in the case are to the effect that the aforesaid  agreement
to sell had been entered into  and  in  pursuance  of  the  said  agreement,
possession of the land in question had been handed over to  the  respondents
upon a payment of Rs. 1 lac, which  was  part  of  the  consideration.   The
consideration for sale was Rs.10 lacs.  The remaining amount  of  Rs.9  lacs
was to be paid in  two installments of Rs. 4  lacs  and  Rs.  5  lacs  each.
Rupees 4 lacs were to be paid by the respondents by the  end  of  30.01.1996
and the remaining Rs.5 lacs were to be paid at the time of execution of  the
sale deed.


        It was also agreed that  before  execution  of  the  sale  deed  the
appellants had to get an entry “Deosthan  Inam”  removed  from  the  revenue
record.  The land in question was shown as “Deosthan  Inam”   and  the  said
entry was to be deleted as it was said on behalf of the appellants that  the
land in question was not “Deosthan Inam” land and needful was to be done  by
the appellants for removal of the said entry.


      It is also not in dispute that a sum of Rs.1 lac  had been paid by the
respondents at the time of agreement  to  sell  was  entered  into  and  the
appellants had not done anything to get entry  showing  “Deosthan  Inam”  in
respect of the land in question removed from the revenue record.


      The suit filed by the appellants had been dismissed on 06.09.2008  and
being aggrieved  by dismissal of the said suit, First  Appeal  No.  1138  of
2009 had been filed in the High Court by the present appellants.   The  said
appeal has  been  dismissed  and  therefore,  this  appeal  has  been  filed
challenging validity of the judgment delivered in First  Appeal  No.1138  of
2009.


   4. We had heard  the learned counsel appearing for the  parties  and  had
      also perused the relevant record.


   5. In our opinion, the High Court should have discussed the  evidence  in
      detail, but somehow the evidence has not been properly discussed or re-
      appreciated by the High Court while dismissing the appeal


   6. Upon perusal of the impugned judgment delivered by the High Court,  it
      is clear that the entire sale consideration had not been paid  but  at
      the same time it is also an admitted fact that the appellants did  not
      get the entry with regard to the “Deosthan Inam” deleted.  There is no
      discussion about the efforts made by the appellants  for  getting  the
      said entry deleted.   The  High  Court  has  also  not  discussed  the
      consequences of non deletion of the said entry and the efforts made by
      the appellants for not getting it deleted.   Similarly,  there  is  no
      definite finding as to how much consideration was  paid  and  at  what
      time or stage.


   7. Even the amount payable by the respondent towards purchase  price  had
      not been paid in full to the appellants and the  said  thing  has  not
      been properly discussed.


   8. We find that the relevant evidence has neither been discussed nor been
      properly appreciated by the High Court.  It was  very  much  necessary
      for  the  High  Court  to  decide  whether  the  appellants  and   the
      respondents had performed their respective duties, which they  had  to
      perform in pursuance of the agreement with regard to sale of the  land
      in question.


   9. In our opinion, without appropriate appreciation of the evidence,  the
      High Court should not have dismissed  the  appeal  and  therefore,  we
      allow the present appeal and remand the matter to the  High  Court  so
      that after hearing the concerned parties, the High Court would take  a
      fresh decision.  As the agreement with regard to sale of the land  had
      been executed before several years, we hope that the High Court  would
      hear and decide the appeal as expeditiously as possible.


  10. The impugned judgment is quashed and set aside with  no  order  as  to
      costs.




                                      …………................................J.

            (ANIL R. DAVE)




                                       …....................................
                                       .......J.

                                                   (DIPAK MISRA)

New Delhi
April 07, 2014




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