Shri.Dhondiba Sopanrao Pimpale (Deceased Thru Lrs.) v. Vishal Chaitanya Coop Hsg. Society (Thrugh Chairman) Shri.Shantaram D. Chorge

1 14.156.18_SA.doc ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 156 OF 2018 WITH CIVIL APPLICATION NO. 364 OF 2018 IN SECOND APPEAL NO. 156 OF 2018 Shri. Dhondiba Sopanrao Pimpale .....Appellants (Deceased through LR's) V/s.

Vishal Chaitanya Coop Hsg.

.....Respondent Society (Through Chairman) Shri. Shantaram D. Chorge Mr. Atul Damle Senior Advocate i/b Mr. Ashok B. Tajane for the appellants Mr. S. S. Kanetkar for the respondent CORAM : NITIN W. SAMBRE, J.

DATE :

FEBRUARY 11, 2020.

P.C.

Special Civil Suit No. 1005 of 1995 was initiated by the respondent-plaintif for specifc performance based on Agreement of Sale, Exh.36, dated 10/07/2009.

2 14.156.18_SA.doc 2] Said suit came to be partly decreed on 19/01/2009 whereby appellant was directed to refund consideration of Rs. 3500/-. 3] Respondent, feeling aggrieved, preferred First Appeal being Appeal No. 592 of 2012 wherein claim of the plaintif was decreed in toto vide Judgment and Order dated 15/01/2018. As such, this Second Appeal.

4] Case of the respondent-plaintif is, Agreement Exh. 36 deals with total land admeasuring 2300 Sq. Meters out of which in a scheme sanctioned under Section 20 of Urban Land (Ceiling and Regulation) Act, land to the extent of 2000 Sq. Meters was released. As such, Sale Deed was executed in favour of respondent-plaintif for said 2000 Sq. Meter of Land. Recitals in the covenant i.e. Exhibit 36 in express terms provides that after the balance land of 300 Sq. Meters will be released by the Urban Land Ceiling Authorities, Sale Deed of same will also be executed in favour of respondent-plaintif by the appellant-defendant. 5] It is not in dispute that Urban Land (Ceiling and Regulation)

3 14.156.18_SA.doc Act stood repealed on 28/11/2007 and said amendment is applicable from 01/12/2007 in the State of Maharashtra. 6] In the aforesaid background, Shri. Damle learned senior counsel for appellant-original defendant would urge that both the courts below have committed an error apparent on the face of record in decreeing the suit particularly when it is not established that the subject matter i.e. 300 Sq. Meters of land was very much available on the date Appellate Court decreed the suit in toto. 7] According to him, Urban Land Ceiling Authorities at Exhibit 86 rejected prayer of the appellant/defendant to release the land to which both the courts were aware of. He would urge that inspite of the same, fndings are recorded that the appellant must execute the Sale Deed for 300 Sq. Meters of land i.e. initially for 150 Sq.

Meters and after processing the prayer with the Urban Land Ceiling Authorities for release of balance land of 150 Sq. Meters.

4 14.156.18_SA.doc disposal of the appellant-defendant and that being so, the Court below ought not to have decreed the suit.

8] Shri. Kanetkar, learned counsel for respondent-plaintif would urge that there are concurrent fndings. According to him, appellant-defendant cannot take beneft of his own wrong or default, particularly when Urban Land (Ceiling and Regulation) Act stood repealed in 2007 and as such, land to the extent of 300 Sq. Meters can be inferred to be very much available at the disposal of the appellant. He sought dismissal.

9] Considered rival submissions.

10] Agreement Exhibit 36 dated 10/07/2009 was duly proved by the respondent-plaintif based on which he has sought to establish his claim to the extent of 300 Sq. Meters of land as admittedly for 2000 Sq. Meters of land, appellant has executed the Sale Deed and parted with the possession.

11] Recitals of Exhibit 36 further speaks of it was the appellant

5 14.156.18_SA.doc who was required to take steps for getting release 300 Sq. Meters of land and has accepted part consideration of Rs. 3500/-. Land to be purchased by respondent-plaintif from the appellant after its release by the competent authority, was to be processed by the appellant can be very much inferred from the recitals of Exhibit 36. 12] Once it is established that the burden to take steps for getting the land released was on the appellant, he should have discharged his onus of demonstrating the eforts in getting the land released and if not, bring on record, so also to the notice of the respondent-plaintif, cause for rejection of such prayer by the competent authority/State Government.

13] Admittedly, appellant has failed to discharge such onus. 14] Rather by efect of repeal of Urban Land Ceiling Act, by virtue of legal fction, possession of the land which was not already taken over by Urban Land Ceiling Authorities/Revenue Authority, remained with the appellant and the appellant is unable to demonstrate that part of 300 sq. Meters of land after repeal of the

6 14.156.18_SA.doc Urban Land Ceiling Act does not remained with it. 15] In the aforesaid background, since the fact remains that appellant, after 2007 remained in possession of 300 Sq. Meters of land which is subject matter of the proceedings, decree for specifc performance ordered by the Lower Appellate Court appears to be just and proper and in tune with the provisions of Section 20 of the Specifc Performance Act.

16] No interference is called for. Appeal as such fails, stands dismissed.

17] In view of dismissal of Second Appeal, Civil Application also stands disposed of.

[NITIN W. SAMBRE, J.]