IN THE COURT OF CIVIL JUDGE SENIOR DIVISION, PUNE, AT PUNE.
S.C.S.NO.1287/95
Shri.Sanjay Kachradas Mutha and others. ....Plaintiffs.
Vs.
Shri. Arjun Balaji Nigade and others. ....Defendants.
Written notes of argument on behalf of the defendants no.1 to 24 may please your Honour-
On behalf of defendants no.1 to 24, the following written argument in addition to the oral submissions already made is filed and copy hereof is also given to the otherside.
The facts in brief as narrated by the plaintiff in his plaint amended from tome to time are as follows -
1] The suit property property described in para-1B of the plaint is the part of the property described in para-1 of the plaint. The property described in para-1B of the plaint admeasuring totally 3-Acre 18-Gunthe was initially acquired by the Maharashtra Govt. for Canal purposes. However, it was not used for the said purpose for long time and hence, the original owners the members of Nigade family made an application for release the said property from the acquisition. Initially, the request of the defendants was totally rejected by the Collector. However, an Appeal to the Commissioner, Pune Division a matter was remanded to the Collector for final decision and thereafter the property described in para-1B of the plaint admeasuring in all 77-R was released from the acquisition.
2] In para-1 of the plaint, the plaintiffs have stated the geneology and the relations interse between the Nigade family. It is further alleged by the plaintiffs that the defendants have entered into an Agreement of Sale with defendants no.19 and 20 and the Agreement of development dated 20/5/1989 took place between members of Nigade family and defendants no.19 and 20. The total price agreed price was Rs.20,00,000/- out of which Rs.5,50,000/- were paid and after making payment the plaintiffs purchased from the defendants no.19 and 20 their right,title and interest in the suit property. It is further alleged by the plaintiffs that thereafter they entered into an agreement with defendants no.1 to 9 and 14 and it was agreed that the defendants i.e. members of Nigade family have made an application to the Govt. for release of land from acquisition and they had also given notice to the same effect. For discussion between the plaintiffs and defendants no.1 to 9 and 14 it is the allegations of the plaintiffs that the defendants undertook responsibility to pursue with the Govt. for release of land from acquisition and thereafter whatever the land that may be released from the acquisition is to be purchased by the plaintiffs from defendants i.e.Nigade family @ Rs.25,000/- per guntha and in pursuance of the said agreement, the plaintiffs paid Rs.90,000/- to the defendants and Visar Pavti was executed by defendants no.1 to 9 and 14 on 12/4/1990 in favour of plaintiffs. At the time of said Visar Pavti defendants no.11,12,13 and 15 to 18 were absent and defendants no.1 to 9 and 14 took responsibility to obtain a consent signatures of the defendants who were absent.
3] In para-3,4 and 5 the material terms agreed between the plaintiffs and Nigade family have been quoted. In para-5 of the plaint, it is stated by the plaintiffs that out of the land that may be released from acquisition 10-gunthas of land will be left to the Nigade family and that the plaintiffs were entitled to utilize the remaining portion of the release land as per their wishes. The plaintiffs also took the responsibility to get the land released out of the purchase of the Urban Land Ceiling Act and that at the end of para no.6 the plaintiffs alleged that after the permission for sell is obtained under the provisions of Urban Land Ceiling Act the plaintiffs were to pay 50% of the amount and to get the Sale-deed executed in their favour.
4] It has been alleged that after the land was released to the extent of 77-R under the order of Collector dated 17/4/1995 and after compliance by the plaintiffs of the terms and conditions of the said Visar Pavti dated 12/4/1990, the defendants-Nigade family did not execute Sathekhat in favour of the plaintiffs as agreed and hence, the plaintiffs by their letter dated 4/6/1995 informed the defendants to execute Sathekhat. However, the defendants gave evasive oral replies and hence again the plaintiffs sent registered letter dated 27/5/1995 and reminded the defendants to execute the Agreement of Sale in their favour of the lands described in para-1B of the plaint. In spite of the said registered letter, the defendant did not take any steps and hence, again the plaintiffs through their advocate sent notice dated and the defendants did not accept the registered packets and hence, they returned back to the Adv. through post but copies of notice sent by UCP were received by the defendants.
5] It is further alleged in the plaint that the members of Nigade family are trying to negotiate the third parties for sale of suit property described in para-1B of the plaint and it is alleged that the Visar Pavti dated 12/4/1990 is still in existence and binding on the defendants and since there is high rise in the prices of the land the defendants are trying to deal with other persons and to abide to observe the terms and conditions mentioned in Visar Pavti and hence originally the plaintiffs have prayed for specific performance for the terms and conditions as mentioned in Visar Pavti dated 12/4/1990 and also prayed that defendants be directed to execute Agreement of Sale in favour of the plaintiffs in accordance with the terms and conditions stated in Visar Pavti dated 12/4/1990. In alternative the plaintiffs have also prayed for damages of Rs.2,31,00,000/-. Thereafter the plaint was amended on two occassions but the material amendments are addition of defendants no.23 and 24 as party to the suit and secondly the prayer for execution of Sale-deed in favour of the plaintiffs.
6] Initially, the defendants no.1 to 8 have filed their w.s. cum reply to exh.5 vide exh.53. These defendants have denied the plaintiffs suit in toto and prayed for dismissal of the suit. It is the contention of these defendants in para-4 of this written statement that they have never executed any development agreement dated 10/5/1989. They further alleged that the members of Nigade family were taking steps through Shri. R.G. Rane to get their lands released from acquisition and that the plaintiffs never took any steps to get the land released. Thereafter no agreement to sale suit lands @ Rs.25,000/- per guntha and that none of the defendants executed agreement by accepting Rs.90,000/- as alleged. It is further alleged by the defendants that none of the defendants took their responsibility to obtain the signatures of the defendants and were absent when the alleged talk took place. The defendants have denied the contentions in para-4 and 5. In para-9 of w.s. Exh.53 it has been specifically stated that all steps were taken by the members of Nigade family with the help of Adv.Shri. Rane to get the land released from acquisition and that plaintiffs had never persuaded for the release of land. It has been denied that any cause of action has arising to the plaintiffs for filing of the suit. In alternative the relief of damages is also denied. In para-15 of the w.s. the geneology of Nigade family has been mentioned. It has been alleged that since some of the defendants have not signed the plaintiffs have no right to claim specific performance in respect of the persons who are not signatories to the Visar Pavti. It has been further stated in para-15B of the plaint that they have entered into agreement of sale dated 20/1/1989 with defendant no.21 Sajid Mohammad Ismail and that they are accepted a sum of Rs.1,51,000/- as earnest money and that after the suit lands were released from acquisition they have actually handed over physical possession of suit property to defendant no.21 on 10/1/1996 and prior to that they have executed Agreement of Sale dated 16/9/1995 and they also executed general Power of Attorney. In para-C of para no.16, it has been alleged that they have taken objection to the public notice issued by developer through Adv. Chandan Parwani. It is the case of the defendants no.1 to 18 that they are ignorant agriculturist and they had taken loan from plaintiff no.3 from time to time and that the said plaintiff no.3 has taken signatures on some papers and on the strength of that the plaintiffs have filed the present suit. It is further alleged that the plaintiffs suit is pre-mature and that the plaintiffs suit of specific performance is not maintainable at law. It is also submitted that it cannot be said that the plaintiffs suit is for specific performance. It is further alleged that the suit is bad for misjoinder and nonjoinder of parties. Finally the defendants have prayed that the plaintiffs suit is false and it be dismissed and compensatory costs of Rs.3500/- be awarded to them from the plaintiffs. These defendants no.1 to 18 have filed additional w.s. after amendment of plaint vide exh.84.
7] The defendants no.2 to 9 and 14 have also filed additional w.s. at exh.382 and admitted the correctness and validity and genuineness of the documents produced with list exh.234 and 251 and they specifically denied that the documents were forged or backdated. It is also contended that the suit is barred by limitation. It is further contended that since alleged Visar pavti dated 12/4/1990 does not mention after execution of the Sale-deed in favour of the plaintiffs, the claim of the plaintiffs for execution of Sale-deed in their favour is not maintainable at law. It is further contended that since the plaintiffs did not pay to the defendants 50% of the amount as mentioned in the alleged Visar Pavti the plaintiffs are not entitled to claim any relief as the plaintiffs were not ready and willing to perform their part of the contract. Moreover, since the plaintiffs are claiming execution of the Sale-deed and in execution of Agreement of Sale it is deemed that the plaintiffs have given up their claim for claiming agreement of sale from the defendants. It is further alleged that these defendants no.10 to 13, 15 to 18 and 23 and 24 were not the signatories to the alleged Agreement of Sale and hence, the plaintiffs cannot claim relief against both the defendants who were and are not the signatories to the alleged Visar Pavti dated 12/5/1990. It is further case of the defendants in para-7 of the w.s. Exh.382 that since the defendants have taken from plaintiff no.3 a sum of Rs.90,000/- by way of loan and since as security the plaintiff no.3 wanted document in his favour it appears that they had prepared Visar pavti and since it was a document of security it was not to be acted upon on repayment of the loan and since the defendants have replied the alleged document prepared by the plaintiff, it is sham, bogus and hollow and cannot be used or acted upon by the plaintiffs. It is further alleged in para-9 of exh.382 that the document namely Agreement of Sale and General Power of Attorney in favour of defendant no.21 was executed on the date of appearing on those deeds as such the said two documents namely Agreement of Sale and General Power of Attorney are true, valid and legal and are binding on the parties thereto. They further alleged that in consultation and consent with defendant no.22 the possession of 67 gunthas out of the suit land have been actually delivered to defendant no.21 on 10/1/1996 and Tabe Pavti has been accordingly executed by members of Nigade family and that members of Nigade have received consideration from defendants no.21 and 22. It is further contended that the agreement dated 10/5/1989 with defendants no.19 and 20 was never to be acted upon and accordingly, it was cancelled and treated accordingly after two months from the date of execution and hence, these plaintiffs did not and cannot acquired any rights on the strength of the said agreement.
8] The defendants no.10 to 13 and 15 to 18 have filed their additional w.s. at exh.384. These defendants have contended that the plaintiffs suit is false and that these defendants had never any talk with the plaintiffs regarding the suit lands and sut property and that these defendants have never given any right to any member of the family to negotiate or deal with their right,title and interest in the suit property and as such none of the defendants had any right or authority to deal with any one in respect of their share and right,title and interest in the suit property. It is further alleged that these defendants have entered into an agreement of sale and are executed General Power of Attorney in favour of defendants no.21 and 22. It is further alleged that the document in favour of the defendants no.21 and 22 were executed on the date appearing thereon and as such all the documents are genuine, legal and valid and binding. It is further alleged that these defendants along with other defendants have given possession of 67 gunthas out of the suit land to defendants no.21 and 22 under the possession receipt dated 10/1/1996. It is further specifically stated that these defendants have received consideration from the defendants no.21 and 22.It is alleged that the suit is barred by limitation. All the allegations by the plaintiffs para-9A[after amendment of plaint] are totally false and denied and finally these defendants have prayed that the suit of the plaintiffs be dismissed with costs.
9] The defendants no.23 and 24 who have been joined after the application filed by the plaintiffs at exh.377 was allowed and they filed w.s. at exh.401. It is contended that the suit is totally barred by law of limitation. It is the specific contention of these defendants in para-3 of exh.401 that inspite of fact that they are and were the necessary parties to the suit the plaintiffs were negligent in joining them as party to the suit and that the plaintiffs are guilty of utter negligence and carelessness in making the application for joining them as parties though the defendant no.21 has specifically pleaded in his w.s. that these defendants were necessary parties and inspite of only thereof the plaintiffs failed to take steps for joining them as parties. The suit is liable to be dismissed on the point of limitation as well as on the point of want of necessary parties to the suit. These defendants have also adopted the contentions of defendants no.10 to 13 and 15 to 18 as raised by them from time to time. Finally these defendants have also pleaded that the suit of the plaintiffs be dismissed and compensatory costs of Rs.5000/- be awarded to them.
10] On these pleadings initially the issues were framed at exh.87 and were amended and recast from time to time and finally were recast by this presiding officer vide exh.87A dated 4/2/2008. The issues at exh.87A have been treated by the parties as finally settled and they are reproduced below -
ISSUES
1]
On behalf of plaintiffs, the plaintiffs have examined Sanjay Kachradas Mutha, the plaintiff no.1 at exh.98 initially and subsequent affidavit in lieu of chief were filed at exh.258 dated 20/6/2005 and also at exh.302 dated 19/6/2006 and at exh.329 and also on 21/1/2008 exhibited as exh.98. In addition, plaintiffs have examined one Manohar Dhondiram Sarwadekar, Branch Manager of Union Bank of India at exh.169 and Vinit Vivek Pachlak at exh.179, official from Tahsildar, Pune City. One Pravinkumar Ramchandra Shah, has been examined on behalf of the plaintiff at exh.225. Shri.R.D. Kulkarni, Adv. has been examined on behalf of plaintiffs at exh.341 and plaintiffs have produced documentary evidence which wil be discussed later on. On behalf ofdefendants no.1 to 18 and 23,24 Subhash Tukaram Nigade-defendant no.2 has been examined at exh.156 and 156A. Defendant no.21 has been examined himself at exh.243 and at exh.284 and 243A. The defendant no.22 has not examined himself but defendant no.21 has deposed for himself as well as on behalf of defendant no.22. Adv. R.G. Rane has been examined as witness for and on behalf of defendants no.21 and 22. On behalf of defendants documentary evidence have been produced and the same will be discussed later on.
11] As regards issue no.1 the plaintiff has alleged in his plaint para-2 that there was an agreement between Nigade family and defendants no.19 and 20 and that there was agreement between them bearing dated 20/5/1989. Infact there is no agreement as such but there is only Visar Pavti. Moreover, the defendants no.19 and 20 have denied any transaction between them on one hand and plaintiffs on the other hand. The original of the said document is not produced on record. The copy of certified copy thereof has been on record and the same is at exh.
. However, though it has been exhibit in law and in fact the said agreement is not proved and therefore, cannot be read in evidence. The plaintiff has not laid any independent evidence to prove the same. The defendant Subhash Nigade is examined in this case as stated on oath that the said agreement was treated by defendants no.19 and 20 and the Nigade family has cancelled and as such the defendants no.19 and 20 had no right,title or interest or any authority to transfer the same. Moreover, the transfer by defendants no.19 and 20 in favour of plaintiffs have been denied in the w.s. As stated above since there is no independent evidence and the document is not proved it cannot be read in evidence and as such this issue should be held against the plaintiffs. Moreover, by the amendment of the plaint, the plaintiffs have prayed decree against defendants on the strength of Visar Pavti dated 12/4/1990 as can be seen from prayer-A. The original claim of the plaintiff for execution of agreement of sale has been given up by the plaintiffs and hence this document dated 25/10/1989 between the defendants no.19 and 20 on one hand and members of Nigade family on the other hand is not and cannot be treated as the suit agreement. In view of the above, it is submitted that this issue has no relevance now and if at all it has to be answered against the plaintiffs.
12] As regards issueno.2, these defendants submit that it is a Visar Pavti austemsibly the plaintiffs case is that they have entered into an agreement and the defendants have exected Visar Pavti. On the other hand it is the case of the defendants that they have taken loan from plaintiffs [plaintiff no.3] and since the plaintiff insisted that there should be some security. The plaintiffs obtained signatures on some documents which were illigeble and moreover since it was executed as a by way of security it was never to be acted upon and on repayment of the loan the said alleged Visar pavti was to be treated as cancelled and since the defendants-Nigade family repaid the loan taken by them from the plaintiffs as alleged Visar Pavti became null and void and not enforceable. In view of this the defendants submit that the document of Visar Pavti exh.239 has no relevance and cannot be enforced by filing suit as is being done by the present plaintiffs.
13] Moreover, even if we read the said document it can be seen that after the release of the land from acquisition, the plaintiffs wereto pay 50% of the agreed amount to the members of Nigade family which admittedly, the plaintiffs have not paid. Moreover, it is stated that on payment of 50% the members of Nigade family were to execute the agreement of sale. As such it is clear that the Agreement of Sale was being executed by the members of Nigade family in favour of the plaintiff and since there is no agreement of sale in favour of the plaintiffs executed by the members of Nigade family, the suit as framed of specific performance is not maintainable. It is clear that on the sttength of alleged Visar Pavti agreement of sale was to be executed and thus it can be definitely said that certain terms were not settled between the parties and after the terms and conditions to be agreed upon by and between the parties it was contemplated that the Agreement of Sale was come into existence. In view of these things there isno agreement of sale the suit for specific performance is not maintainable at law. This argument assuming without admitting that the members of Nigade family didreally executed Visar Pavti as it is their contention that the Agreement of Sale/Visar Pavti was never intended to be executed and since the plaintiff required some security it appears that the plaintiffs have brought into existence the said Visar Pavti.
14] As regards issue no.3 for the reasons stated for issue no.2 and since there is no agreement of sale in existence the suit is premature and since that unless an agreement of sale comes into existence there cannotbe a suit for specific performance for execution of Sale-deed. In view of this the finding on this issue should be in the affirmative holding that the suit is premature.
15] As regards issue no.4, these defendants submit that the suit is bad for non-joinder of necessary party. The defendant no.21 has filed his w.s. at exh. on it is clearly contended that certain members of Nigade family named there in were required to be joined as necessary party. In spite of this the plaintiff did not take steps till they filed application at exh.377 dated for bringing the defendants no.23 and 24 on record. In application at exh.377 the plaintiffs have clearly admitted that the joining of defendants no.23 and 24 is requires as they are necessay parties. Besides since the defendant no.23 and 24 have separate right,title and interest in the joint family property, they being tenants in common they are required to be joined as necessary parties. These defendants bring to the notice of the Hon'ble Court the provisions of Order-1 Rule-10 of C.P.C. and to Sec.21 of the Limitation Act clearly laying down the provisions of law that if a person is joined as party defendant then, the amendment does not relate back to the date of the suit but the suit must be deemed to have been filed against such defendants on the date when he is brought on record. This Hon'ble Court while passing order allowing the application at exh.377 has clearly observed that the point of limitation has been kept open. This court has not while granting the application contend the delay in fact and not much since there was total negligence on the part of the plaintiffs in making an application in spite of specific allegation and contention raised by the defendant no.21 in his w.s. Filed in the year 1996. It must he held that the plaintiffs were totally negligent and careless in bringing the necessary parties on record. Therefore, there is no question of condoning the delay. It has also been noted that in application exh.377 the plaintiffs never alleged any bona fide mistake or error on their part and not prayed for condonation of delay. In view of this the defendants no.23 and 24 must be deemed to have become party to the suit only at the most when application at exh.377 was filed. It can be seen from the plaint para-12 that the cause of action has been stated were occurred on 17/4/1995 or at the most on 27/5/1995 the limitation for filing the suit for specific performance or in the alternative for damages is three years and even assuming without admitting that there was any cause of action for the plaintiffs to file this suit. The limitation expires on 17/4/1998 or 17/5/1998. This amendment for bringing the defendants no.23 and 24 on record by an application at exh.377 its date is therefore beyond the period of three years and as such the suit is hopelessly barred by limitation and since the defendants no.23 and 24 being necessary parties the suit is liable to be dismissed in view of provisions of Order-1 Rule- of C.P.C. The defendants therefore, submit that even on this ground alone the suit is liable to be dismissed intoto and it be dismissed accordingly.
The defendant no.21 in reply the interrogatories exh.
that the document Agreement of Sale dated 16/9/1995 is in possession of defendant no.22[Altamash] and in spite thereof and with knowledge that defendant no.22 has purchased property. So also the defendant no.21 in his w.s. In the year 1996[exh. ] has contended that the defendant no.22[Altamash] has purchased portion of suit property in spite of these submissions and contentions raised by defendant no.21 in his w.s. As well as in reply to interrogatories the plaintiff did not take any steps against the defendant no.22 on record. The plaintiffs made application for bringing the defendant no.22 on record on and hence beyond period of limitation and as such whatever has been submitted in respect of defendants no.23 and 24 from bringing them as party on record equally applies the defendant no.22 and hence the suit be dismissed for want of necessary parties.
As regards issue no.6, these defendants submits that Subhash Nigade who has been examined at exh. has clearly admitted in evidence that they have delivered physical actual possession of 67-R of land out of suit property described in para-1b of the plaint and plaintiff executed Tabe Pavti which is produced on record being exh.239. So also defendant no.21 in his deposition has also stated on oath that the members of Nigade family have delivered to him actual physical possession of 67-R out of suit land. There is no material brought in cross-examination either of Subhash Nigade or of defendant no.21 to show that they are not in possession. Moreover, the plaintiffs do not claim possession which have been received from defendants i.e. members of Nigade family.
The allegations of the plaintiff is that these documents has been brought in existence by forging the same and being it has been prepared antidated. The plaintiff further alleged that since according to them it appears the signature of Bhimaji Nigade who is dead in the year 1994 the document is forged. To this the defendant Subhash Nigade in his deposition has stated that the documents have been prepared on the date which appears on the document itself and one of the document including the document of possession receipt are not indicated forged. It has been admitted by the plaintiff in his cross-examination during the deposition that he cannot say whether exh.239 bear the signature of Bhimaji. More over the defendants Subhash Nigade has ;stated that after the name of Bhimaji has been written the further portion namely “deceased by legal representatives has remained to be written. More over carefully scrutiny of the documents it can be said that ;all the legal heirs of Bhimajii has immediately signed below the same i.e. name written as Bhimaji. More over,this document has been attested by Executive Magistrate, Pune Sub Division, Pune which is gazetted Govt. Officer of Class I status and all the ;acts done by the Officer in discharge of his official duties has strongly presumption that even if . Besides that Adv.Shri. Parulekar had identified the signatories one cannot presumed that the Adv. had identified the dead person. Similarly when the documents is attested and without any remark it is beyond comprehension that Special Executive Magistrate attested the same without due care and cautions, it must therefore, be held most probable that all the persons ;who have signed the documents ;were present before the Spl. Executive Magistrate, and hence it is not signature of Bhimaji Nigade, which appears on the documents, but it is simply name ;written in the document and this document therefore, is totally legal, valid and having enforce.
This defendant submits that Defendant No.1 come to the conclusion that document is not properly stamped and requires ;to be impounded. This defendant and particularly defendant No.21 is ready and willing to pay requisite Court fee stamp along with penalty as; and when ;ordered by the Court. The Plaintiffs have brought in cross examination on record; of defendant No.21 filed by him before Supreme Court and he has made a statement that somebody himself have signed for and on behalf of defendants. However, since the Bhimaji is dead, there was no question of somebody signing these documents. It is a bona fide mistake made by defendant No.21 and instead of saying that somebody wrote the name of Bhimaji and has stated have remained to be written and in spite of that; he made ;such a statement at bar in the affidavit. Since it is a bona fide mistake, and improper, the same has to be ignored and the defendants prayed that it be paid in the context of explanation above . In view of this, these defendants submit that it be ;held that defendant No.21 is in possession of 67 Ares out of Suit ;land described in Para No.1B of the Plaint.
As regards Issue no.8, this issue is to be considered along with issue Nos. 8A and 8B. All these issues relates to whether Plaintiffs are entitled for Specific Performance of the contract on the; strength of the Visar Pavati dt. 12.4.90. Some of the argument in this respect ;has been summarised while submitting the argument on issue Nos. . in; addition to above submission, this defendant submits that the Plaintiffs are not an agriculturist. The suit lands are agricultural lands. As per the provisions of B.T. & A.L Act, non agriculturist cannot without the permission of Collector, or any other competent authority purchased the ;agricultural lands. More over the order pased by the Collector relating the lands described in para no.1B of the plaint specifically and clearly stipulates condition that the land has been released has to be used for the purpose of agricultural and not for any other purpose. Further the Plaitnffs in his deposition has admitted that they have never entered into the alleged transaction with members of Nigade family while obtaining alleged Visar pavati that the land intended by them to be used for the purpose of Development and construction of building and sell of shops, flats etc. Thus this clearly contravened the condition laid down by the Collector while realizing the land for acquisition, and on this ground also the plaintiffs are not entitled for the Specific performance. More over tenure of Visar Pavati is in the nature of Development agreement and it is settled provision of law that there cannot be specific performance of development agreement. For this reasons also these defendants submit that the Plaintiffs are not entitled for the Specific Performance of the said Visar Pavati. The Plaintiff No.3 who has been examined int his case has clearly admitted in his ;cross examination that they intended to use the suit lands for development and not for agricultural purpose.
As regards issue No.8B it is connected as stated above the Plaintiffs are not entitled for specific performance for the reasons submitted above. Besides the defendant No.2 is not signatory to the alleged Visar Pavati as submitted above, they are tenants in common and have not executed any Power of Attorney and authorized anybody to negotiate or deal with their shares in the suit lands. More over, the Plaintiffs have admitted in his cross examination that there was no talk at all between the lady defendants and the Plaintiffs and as such there is nothing on record to show that this defendant (lady defendant) have consented to any transaction alleged to have taken place between Male members of Nigade family and the Plaintiffs. So also since the suit against defendant No.23 and 24 is barred by limitation as against defendants No. 22, 23 and 24 the suit is liable to be dismissed. For the reasons stated above the Plaintiffs are not entitled for the specific; performance and the suit is liable to be dismissed. Therefore, issues Nos. 8A, 8B, 8C, and 8D may be answered in the negative holding that the plaintiffs are not entitled for the specific performance at all.
As regards issue no.7, these defendants submit that for the reasons which follow these defendants submit that it be held that plaintiffs are/were not ready and willing to perform their part of contract. Assuming without admitting the genuineness of the said Visar Pavti, these defendants submit that as per the said alleged Visar Pavti after the release of land on acquisition, the plaintiffs were pay half of the agreed price to the members of Nigade family and on payment thereof members of Nigade family were to execute the agreement of sale in favour of plaintiffs. Admittedly, the plaintiffs have not even alleged in the plaint that they have offered to pay 50% of the price to the members of Nigade family. Not only this in the cross-examination ofplaintiff no.3 he has admitted that they have not offered to pay half price at any time to the members of Nigade family and as such it must be held that they were not willing to perform their part of the contract. Another point to be considered on the point of ready and willing is that the plaintiffs were to take all steps for getting the land released from acquisition though the plaintiffs alleged that they have engaged Adv. Kulkarni for getting the land released and have examined Mr. R. D. Kulkarni at exh.
as ther witness. It has come in the cross-examination on record that except the bare words of R. D. Kulkarni there is nothing on record to show that plaintiffs engaged Adv. Kulkarni before the Collector. In cross-examination R. D. Kulkarni has to admit that he was engaged by Nigade and not by plaintiffs. On behalf of defendants, it is their case that members of Nigade family engaged Mr. Rane to get their land released from acquisition and that defendants Subhash Nigade has clearly admitted in his examination-in-chief and in his evidence that defendant no.21 has rendered substantial help including making payment of advocate getting the land released from acquisition. Shri. Rane Adv. has been examined as witness on behalf of defendant no.21 and he has admitted that he was engated by Nigade and Sajidbhai for getting the land released. He appeared before the Commissioner for the guidelines settled for release of land from acquisition and the commissioner remanded the matter to the Collector for decision. Collector was accepted to decide the matter after remand on the basis of guidelines issued by the Commissioner. Shri.Rane has further stated that he prepared arguments which is filed before the Collector after remand and handed over the same to member of Nigade family who obtained the signature of Shri. R. D. Kulkarni and file the same. It has come in his evidence of R.D. Kulkarni as well as Shri. Rane that both these advocates are friends of each other and they were appearing either side for and against each other before the revenue authorities in various matters. It is therefore more probable that Rane prepared the argument and members of Nigade family obtained the signature of R.D. Kulkarni and file the same. In view of this it is clear that plaintiff did not take any steps to get the land released from acquisition. The plaintiffs have produced during the cross-examination of Subhash Nigade certain documents in the application made by Nigade family to the revenue authorities for release of land. The defendant Subhash Nigade has clearly explain as to how plaintiffs came in possession of such applications. The explanation occurred by defendant Subhash Nigade is that since the suit amounts were given to the plaintiffs as and by way of security, the plaintiffs were insisting on the defendants the members of Nigade family that whatever applications they would make to the revenue authorities for release of land they should be handed over to them for their record. This infact is true state of affairs as to how these applications come in the possession of the plaintiffs. Therefore, it has to be held that it is the defendants and Sajidbhai together were responsible of getting the land release from the acquisition. The other reasons in support of this are contend in the submissions made on issues no.
The plaintiffs have come before the court with clean hands even on going through the alleged Visar pavti it can be seen that the plaintiffs are entitled only 67-Rs And were never entitled to 77-Rs. In spite of this all in their letters notices through advocates and even in the suit, the plaintiffs are claiming specific performance of 77-R to which they were never entitled to. This is an additional ground in support of the contention that the plaintiffs were never ready and willing to perform their part of contract and they want to take unfair advantage of the document which was never to be acted upon as submitted by these defendnts.
ISSUE NO.5 : The defendant no.21 submits that the members of Nigade family agreed to sale the whole of the suit lands described in para-1A of the plaint after the lands are released from the acquisition. However, for the time being the land described in para-1B of the plaint are released and out of this 67-R are to be purchased by the defendant no.1 and accordingly Agreement of Sale[Sathekhat] has been executed in his favour on 21/1/1989. Thus, tis agreement of sale is prior in time not only of the plaintiffs Visar pavti dated 12/4/1990 but also prior in time of the alleged agreement between members of Nigade family and defendant no.19 and 20. As regards this agreement between Takle and Khoja defendant no.19 and 20 and Nigade family it is dated 5/10/1989 without prejudice to submissions already made these defendants submit that even this agreement dated 25/10/1989 in favour of Khoja and Takle it has been treated by and between the parties thereto as cancelled and therefore, even assuming without admitting that the plaintiffs have purchased the rights from Takle and Khoja the same being later in time cannot have any effect on the agreement dated 21/1/1989 with these defendants by members of Nigade family.
The plaintiffs are alleging that this document and two other documents of 1995-96 have been created subsequently and these documents are forged and anti-dated. However, the plaintiffs who are not parties to the said document the persons who have executed agreement agreed and confirmed that such documents were executed by them and in view of this when the plaintiffs executing the document at least execution thereof and also their validity the plaintiffs cannot challenged validity of the same by alleging that the said documents are forged and of anti-dated. It was suggested bythe plaintiffs in cross-examination of this defendant no.21 that all these documents were typed on same typewriter. Even assuming that they are typed on the same typewriter itcannot be said merely on the same ground that these documents have been prepared at one and same time and that too after the dates on which the dates clear on the document. Similarly it has been suggested that the ink is the same. The same analogy lies that even if the ink is same it cannot besaid that the documents are prepared at one and same time and also on that ground it can be said that they are anti-dated.
It is also submitted that the defendants who appear before the court and in the presence of the Nazir of the court of official sign in his presence was that the signatures can be sent for comparison and to determine their genuineness through the hand writing expert and since these defendants did not appear as per the directions of the order of the court the plaintiffs have already submitted and are likely to submit again during the course of arguments that the adverse inference be drawn against the defendants for not appearing before the Nazir and not making signatures in his presence. The question of attesting the genuineness of the signatures arises merely when the person executing the same denies that it is his signature and alleges that somebody has forged his signature. In the present case the defendants have right from the beginning admitted that they have executed the documents in favour of the defendants no.21 and 22. This not only they have stated in examination-in-chief but also they have admitted same in their w.s. Long back after the service of suit summons. In view of this these defendants submit that no adverse inference can be drawn as has been submitted or being submitted by the plaintiffs.
The other contentions of the plaintiffs is that the documents were not produced before the court when the defendant no.21 and 22 appear in the court. These defendants submit that filing of documents and filing of xerox copies at the time of filing w.s.etc. is the requirement of the Civil Procedure Code as amended and in force from 2002 and not prior to that. However, there are number of instances where the documents were produced much late. However, moreover the defendant no.21 has stated in his cross-examination that he was required to produced the documents at the relevant time . He further stated in his cross-examination that he was told[by his advocate] to produce the documents as somebody advised by him and therefore, merely because the documents were not produced immediately on the appearance of defendants no.21 and 22 no adverse inference can be drawn against them and no cognizance can be drawn that the documents were forged and of anti-dated. In view of the submissions made above, it is submitted that it be held that the document dt.21/1/1989 is valid, legal and binding on the defendants that members of Nigade family and as such it be further held that defendant no.21 has proper claim of purchase of suit land.
The plaintiffs has amended the plaint and filing application exh.292 and thereby incorporated para-9A and thereby contended that all these documents produced with exh.234 and 251 are the coercion of collusion between members of Nigade family and defendants no.21 and 22. It has been further alleged that all these documents are anti-dated,forged and were brought in existence after filing of the suit and not on the date as appear on the respective documents and by this amendment instead of prayer for directions to the defendants to execute Agreement of Sale the plaintiffs instead prayer for direction to the defendants to execute Agreement of Sale have made prayer to execute the Sale-deed in their favour on the strength of Visar Pavti dated 12/4/1990. As regards the plaintiffs entitlement to claim the decree for execution of Sale-deed in his favour the arguments have been already advanced above. This argument is being only as to whether the amendment as sought for and granted by the court could have been allowed and whether it changes the nature of the suit etc. The defendant no.21 challenged this order below exh.292 passed by this court allowing the application and amended in the plaint and the Hon'ble High Court in Writ Petition no. kept open by Judgment dated . Seems this point has been kept open these defendants submit that the amendment is misconceived and is much belated. In addition to that it changes the nature of suit it further changes the cause of action it is against the alleged Visar Pavti dated 12/4/1990. This says that on payment of 50% of the agreed price the Agreement of Sale [Sathekhat] was to be executed in favour of the plaintiffs and since then amendment could not have been allowed the amended clause-9A and other consequential amendment made in plaint bedirected to be deleted and in view of this it is further submitted that issue no.7A does not at all arise.
As regards issue no.7A we have already submitted that since the amendment in clause-9A could not have been allowed and should be strucked of the question of finding on issue no.7A does not arise. In fact issue no.7A does not arise. It is submitted that since the defendants who have executed the documents without admitted their genuineness, correctness and validity it cannot be said that plaintiffs can challenged the same who is not a party to the documents. Furthermore, this document have been admitted not merely in the evidence before the court but while filing w.s. And as such the documents made in pleadings are superior to any admission was continuously made by any party while deposing before the court. In support of this these defendants rely on the case reported in
As regards issue no.7B these defendants submit that since the documents are of 1989 and 1995-96 it challenged there to be made by filing application at exh.299 which is dated . The existence of these documents have been brought on record by defendant no.21 when he filed his w.s. Exh. in 1996. In view of this the application made on [exh.292] is beyond period of three years from the date of knowledge and as such the relief of declaration assuming without admitting that the plaintiffs are entitled to is beyond limitation and as such barred by law. These defendants submit that this issue no.7B be decided in negative and it be held that the relief for declaration is beyond the period of limitation.
ISSUE NO.9 : These defendants submit that since plaintiffs are not entitled to relief of specific performance there is no question of awarding damages in view of specific performance. The question of damages arises only when court finds that the plaintiffs are entitled for specific performance but in the given circumstances it would not be proper and just to grant relief of equitable relief of specific performance then only the question of considering the point of damages arises. In view of this first submission is that the plaintiffs are not entitled to alternative relief of damages. The question of alternative relief arises only when the question of specific performance is decided in favour of the plaintiff but court finds unjust to grant specific performance but finds fit to award alternative relief of damages. As earlier submitted the plaintiffs are not at all entitled to relief of specific performance the question of consideration of alternative relief of damages does not arise.
Without prejudice to the submissions made above, let us consider the evidence laid by the plaintiffs and his witness. The plaintiff has not made any direct evidence in his deposition on this point. The valuer has been examined at exh.225 and his report is at exh.229. Mr. Pravin Shah who has Govt. Approved valuer has submitted his report dated 18/7/2005 at exh.229 and has been examined at exh.225. In his examination-in-chief he has stated that he has collected stamp duty from ready recknor from 2005 from the concerned office and that he has calculated the rateof land as per ready recknor and has come to the conclusion that the value of the land in para-1A is to the tune of Rs.2,25,25,000/- in the year 1995. During his cross-examination he has to admit that annexure under the heading business lines dated 17/7/2005 is annexed by him but he cannot give the name of author and the correctness thereof. Further he has clearly admitted in his cross-examination that he never participated in land acquisition proceeding and that ready recknor supplied along with exh.229 is the only basis for valuation of the suit property. In view of this it is submitted that the valuation report has no value at all. In this respect these defendants bring to the notice of this Hon'ble court the rulings of Supreme Court reported in is clearly made out that the valuation as per ready recknor cannot be basis of valuation but they are only relevant for the purpose of stamp duty. In view of this rulings and the laws laid down by the Supreme Court, these defendants submit that there is no evidence at all on the contempt of damages and report of the valuation is not the work on which it is printed and hence has to be rejected. It is therefore, submitted for the above reasons this issue be decided in the negative and it be held that the plaintiffs are not entitled for the alternative relief for all these submissions made above, these defendants submit that the plaintiff has miserably failed to prove his case. In fact the plaintiff has filed the suit which is false and vexatious and has deprived the defendants all the fruits of the suit transaction between defendants no.21 and 22 on one hand and members of Nigade family on the other hand and as such these defendants submit that they are entitled to compensatory costs and these defendants being awarded compensatory costs for the same as the court may deemed fit.
visar pavati
civil judge senior division pune
law visar pawati
annuj goel goel ganga development
court of civil judge , pune
court of civil judge senior division
in the court of civil judge, senior division, pune at pune.
is visar pavati legal document
judgement of jmfc court pune in september
khushroo khobyar mumbai
sample for visar pavati
savita ingawale,pune
taba pavti
vilas nandgude patil signature
case on savita ingawale,pune
visar pavati validity
S.C.S.NO.1287/95
Shri.Sanjay Kachradas Mutha and others. ....Plaintiffs.
Vs.
Shri. Arjun Balaji Nigade and others. ....Defendants.
Written notes of argument on behalf of the defendants no.1 to 24 may please your Honour-
On behalf of defendants no.1 to 24, the following written argument in addition to the oral submissions already made is filed and copy hereof is also given to the otherside.
The facts in brief as narrated by the plaintiff in his plaint amended from tome to time are as follows -
1] The suit property property described in para-1B of the plaint is the part of the property described in para-1 of the plaint. The property described in para-1B of the plaint admeasuring totally 3-Acre 18-Gunthe was initially acquired by the Maharashtra Govt. for Canal purposes. However, it was not used for the said purpose for long time and hence, the original owners the members of Nigade family made an application for release the said property from the acquisition. Initially, the request of the defendants was totally rejected by the Collector. However, an Appeal to the Commissioner, Pune Division a matter was remanded to the Collector for final decision and thereafter the property described in para-1B of the plaint admeasuring in all 77-R was released from the acquisition.
2] In para-1 of the plaint, the plaintiffs have stated the geneology and the relations interse between the Nigade family. It is further alleged by the plaintiffs that the defendants have entered into an Agreement of Sale with defendants no.19 and 20 and the Agreement of development dated 20/5/1989 took place between members of Nigade family and defendants no.19 and 20. The total price agreed price was Rs.20,00,000/- out of which Rs.5,50,000/- were paid and after making payment the plaintiffs purchased from the defendants no.19 and 20 their right,title and interest in the suit property. It is further alleged by the plaintiffs that thereafter they entered into an agreement with defendants no.1 to 9 and 14 and it was agreed that the defendants i.e. members of Nigade family have made an application to the Govt. for release of land from acquisition and they had also given notice to the same effect. For discussion between the plaintiffs and defendants no.1 to 9 and 14 it is the allegations of the plaintiffs that the defendants undertook responsibility to pursue with the Govt. for release of land from acquisition and thereafter whatever the land that may be released from the acquisition is to be purchased by the plaintiffs from defendants i.e.Nigade family @ Rs.25,000/- per guntha and in pursuance of the said agreement, the plaintiffs paid Rs.90,000/- to the defendants and Visar Pavti was executed by defendants no.1 to 9 and 14 on 12/4/1990 in favour of plaintiffs. At the time of said Visar Pavti defendants no.11,12,13 and 15 to 18 were absent and defendants no.1 to 9 and 14 took responsibility to obtain a consent signatures of the defendants who were absent.
3] In para-3,4 and 5 the material terms agreed between the plaintiffs and Nigade family have been quoted. In para-5 of the plaint, it is stated by the plaintiffs that out of the land that may be released from acquisition 10-gunthas of land will be left to the Nigade family and that the plaintiffs were entitled to utilize the remaining portion of the release land as per their wishes. The plaintiffs also took the responsibility to get the land released out of the purchase of the Urban Land Ceiling Act and that at the end of para no.6 the plaintiffs alleged that after the permission for sell is obtained under the provisions of Urban Land Ceiling Act the plaintiffs were to pay 50% of the amount and to get the Sale-deed executed in their favour.
4] It has been alleged that after the land was released to the extent of 77-R under the order of Collector dated 17/4/1995 and after compliance by the plaintiffs of the terms and conditions of the said Visar Pavti dated 12/4/1990, the defendants-Nigade family did not execute Sathekhat in favour of the plaintiffs as agreed and hence, the plaintiffs by their letter dated 4/6/1995 informed the defendants to execute Sathekhat. However, the defendants gave evasive oral replies and hence again the plaintiffs sent registered letter dated 27/5/1995 and reminded the defendants to execute the Agreement of Sale in their favour of the lands described in para-1B of the plaint. In spite of the said registered letter, the defendant did not take any steps and hence, again the plaintiffs through their advocate sent notice dated and the defendants did not accept the registered packets and hence, they returned back to the Adv. through post but copies of notice sent by UCP were received by the defendants.
5] It is further alleged in the plaint that the members of Nigade family are trying to negotiate the third parties for sale of suit property described in para-1B of the plaint and it is alleged that the Visar Pavti dated 12/4/1990 is still in existence and binding on the defendants and since there is high rise in the prices of the land the defendants are trying to deal with other persons and to abide to observe the terms and conditions mentioned in Visar Pavti and hence originally the plaintiffs have prayed for specific performance for the terms and conditions as mentioned in Visar Pavti dated 12/4/1990 and also prayed that defendants be directed to execute Agreement of Sale in favour of the plaintiffs in accordance with the terms and conditions stated in Visar Pavti dated 12/4/1990. In alternative the plaintiffs have also prayed for damages of Rs.2,31,00,000/-. Thereafter the plaint was amended on two occassions but the material amendments are addition of defendants no.23 and 24 as party to the suit and secondly the prayer for execution of Sale-deed in favour of the plaintiffs.
6] Initially, the defendants no.1 to 8 have filed their w.s. cum reply to exh.5 vide exh.53. These defendants have denied the plaintiffs suit in toto and prayed for dismissal of the suit. It is the contention of these defendants in para-4 of this written statement that they have never executed any development agreement dated 10/5/1989. They further alleged that the members of Nigade family were taking steps through Shri. R.G. Rane to get their lands released from acquisition and that the plaintiffs never took any steps to get the land released. Thereafter no agreement to sale suit lands @ Rs.25,000/- per guntha and that none of the defendants executed agreement by accepting Rs.90,000/- as alleged. It is further alleged by the defendants that none of the defendants took their responsibility to obtain the signatures of the defendants and were absent when the alleged talk took place. The defendants have denied the contentions in para-4 and 5. In para-9 of w.s. Exh.53 it has been specifically stated that all steps were taken by the members of Nigade family with the help of Adv.Shri. Rane to get the land released from acquisition and that plaintiffs had never persuaded for the release of land. It has been denied that any cause of action has arising to the plaintiffs for filing of the suit. In alternative the relief of damages is also denied. In para-15 of the w.s. the geneology of Nigade family has been mentioned. It has been alleged that since some of the defendants have not signed the plaintiffs have no right to claim specific performance in respect of the persons who are not signatories to the Visar Pavti. It has been further stated in para-15B of the plaint that they have entered into agreement of sale dated 20/1/1989 with defendant no.21 Sajid Mohammad Ismail and that they are accepted a sum of Rs.1,51,000/- as earnest money and that after the suit lands were released from acquisition they have actually handed over physical possession of suit property to defendant no.21 on 10/1/1996 and prior to that they have executed Agreement of Sale dated 16/9/1995 and they also executed general Power of Attorney. In para-C of para no.16, it has been alleged that they have taken objection to the public notice issued by developer through Adv. Chandan Parwani. It is the case of the defendants no.1 to 18 that they are ignorant agriculturist and they had taken loan from plaintiff no.3 from time to time and that the said plaintiff no.3 has taken signatures on some papers and on the strength of that the plaintiffs have filed the present suit. It is further alleged that the plaintiffs suit is pre-mature and that the plaintiffs suit of specific performance is not maintainable at law. It is also submitted that it cannot be said that the plaintiffs suit is for specific performance. It is further alleged that the suit is bad for misjoinder and nonjoinder of parties. Finally the defendants have prayed that the plaintiffs suit is false and it be dismissed and compensatory costs of Rs.3500/- be awarded to them from the plaintiffs. These defendants no.1 to 18 have filed additional w.s. after amendment of plaint vide exh.84.
7] The defendants no.2 to 9 and 14 have also filed additional w.s. at exh.382 and admitted the correctness and validity and genuineness of the documents produced with list exh.234 and 251 and they specifically denied that the documents were forged or backdated. It is also contended that the suit is barred by limitation. It is further contended that since alleged Visar pavti dated 12/4/1990 does not mention after execution of the Sale-deed in favour of the plaintiffs, the claim of the plaintiffs for execution of Sale-deed in their favour is not maintainable at law. It is further contended that since the plaintiffs did not pay to the defendants 50% of the amount as mentioned in the alleged Visar Pavti the plaintiffs are not entitled to claim any relief as the plaintiffs were not ready and willing to perform their part of the contract. Moreover, since the plaintiffs are claiming execution of the Sale-deed and in execution of Agreement of Sale it is deemed that the plaintiffs have given up their claim for claiming agreement of sale from the defendants. It is further alleged that these defendants no.10 to 13, 15 to 18 and 23 and 24 were not the signatories to the alleged Agreement of Sale and hence, the plaintiffs cannot claim relief against both the defendants who were and are not the signatories to the alleged Visar Pavti dated 12/5/1990. It is further case of the defendants in para-7 of the w.s. Exh.382 that since the defendants have taken from plaintiff no.3 a sum of Rs.90,000/- by way of loan and since as security the plaintiff no.3 wanted document in his favour it appears that they had prepared Visar pavti and since it was a document of security it was not to be acted upon on repayment of the loan and since the defendants have replied the alleged document prepared by the plaintiff, it is sham, bogus and hollow and cannot be used or acted upon by the plaintiffs. It is further alleged in para-9 of exh.382 that the document namely Agreement of Sale and General Power of Attorney in favour of defendant no.21 was executed on the date of appearing on those deeds as such the said two documents namely Agreement of Sale and General Power of Attorney are true, valid and legal and are binding on the parties thereto. They further alleged that in consultation and consent with defendant no.22 the possession of 67 gunthas out of the suit land have been actually delivered to defendant no.21 on 10/1/1996 and Tabe Pavti has been accordingly executed by members of Nigade family and that members of Nigade have received consideration from defendants no.21 and 22. It is further contended that the agreement dated 10/5/1989 with defendants no.19 and 20 was never to be acted upon and accordingly, it was cancelled and treated accordingly after two months from the date of execution and hence, these plaintiffs did not and cannot acquired any rights on the strength of the said agreement.
8] The defendants no.10 to 13 and 15 to 18 have filed their additional w.s. at exh.384. These defendants have contended that the plaintiffs suit is false and that these defendants had never any talk with the plaintiffs regarding the suit lands and sut property and that these defendants have never given any right to any member of the family to negotiate or deal with their right,title and interest in the suit property and as such none of the defendants had any right or authority to deal with any one in respect of their share and right,title and interest in the suit property. It is further alleged that these defendants have entered into an agreement of sale and are executed General Power of Attorney in favour of defendants no.21 and 22. It is further alleged that the document in favour of the defendants no.21 and 22 were executed on the date appearing thereon and as such all the documents are genuine, legal and valid and binding. It is further alleged that these defendants along with other defendants have given possession of 67 gunthas out of the suit land to defendants no.21 and 22 under the possession receipt dated 10/1/1996. It is further specifically stated that these defendants have received consideration from the defendants no.21 and 22.It is alleged that the suit is barred by limitation. All the allegations by the plaintiffs para-9A[after amendment of plaint] are totally false and denied and finally these defendants have prayed that the suit of the plaintiffs be dismissed with costs.
9] The defendants no.23 and 24 who have been joined after the application filed by the plaintiffs at exh.377 was allowed and they filed w.s. at exh.401. It is contended that the suit is totally barred by law of limitation. It is the specific contention of these defendants in para-3 of exh.401 that inspite of fact that they are and were the necessary parties to the suit the plaintiffs were negligent in joining them as party to the suit and that the plaintiffs are guilty of utter negligence and carelessness in making the application for joining them as parties though the defendant no.21 has specifically pleaded in his w.s. that these defendants were necessary parties and inspite of only thereof the plaintiffs failed to take steps for joining them as parties. The suit is liable to be dismissed on the point of limitation as well as on the point of want of necessary parties to the suit. These defendants have also adopted the contentions of defendants no.10 to 13 and 15 to 18 as raised by them from time to time. Finally these defendants have also pleaded that the suit of the plaintiffs be dismissed and compensatory costs of Rs.5000/- be awarded to them.
10] On these pleadings initially the issues were framed at exh.87 and were amended and recast from time to time and finally were recast by this presiding officer vide exh.87A dated 4/2/2008. The issues at exh.87A have been treated by the parties as finally settled and they are reproduced below -
ISSUES
1]
On behalf of plaintiffs, the plaintiffs have examined Sanjay Kachradas Mutha, the plaintiff no.1 at exh.98 initially and subsequent affidavit in lieu of chief were filed at exh.258 dated 20/6/2005 and also at exh.302 dated 19/6/2006 and at exh.329 and also on 21/1/2008 exhibited as exh.98. In addition, plaintiffs have examined one Manohar Dhondiram Sarwadekar, Branch Manager of Union Bank of India at exh.169 and Vinit Vivek Pachlak at exh.179, official from Tahsildar, Pune City. One Pravinkumar Ramchandra Shah, has been examined on behalf of the plaintiff at exh.225. Shri.R.D. Kulkarni, Adv. has been examined on behalf of plaintiffs at exh.341 and plaintiffs have produced documentary evidence which wil be discussed later on. On behalf ofdefendants no.1 to 18 and 23,24 Subhash Tukaram Nigade-defendant no.2 has been examined at exh.156 and 156A. Defendant no.21 has been examined himself at exh.243 and at exh.284 and 243A. The defendant no.22 has not examined himself but defendant no.21 has deposed for himself as well as on behalf of defendant no.22. Adv. R.G. Rane has been examined as witness for and on behalf of defendants no.21 and 22. On behalf of defendants documentary evidence have been produced and the same will be discussed later on.
11] As regards issue no.1 the plaintiff has alleged in his plaint para-2 that there was an agreement between Nigade family and defendants no.19 and 20 and that there was agreement between them bearing dated 20/5/1989. Infact there is no agreement as such but there is only Visar Pavti. Moreover, the defendants no.19 and 20 have denied any transaction between them on one hand and plaintiffs on the other hand. The original of the said document is not produced on record. The copy of certified copy thereof has been on record and the same is at exh.
. However, though it has been exhibit in law and in fact the said agreement is not proved and therefore, cannot be read in evidence. The plaintiff has not laid any independent evidence to prove the same. The defendant Subhash Nigade is examined in this case as stated on oath that the said agreement was treated by defendants no.19 and 20 and the Nigade family has cancelled and as such the defendants no.19 and 20 had no right,title or interest or any authority to transfer the same. Moreover, the transfer by defendants no.19 and 20 in favour of plaintiffs have been denied in the w.s. As stated above since there is no independent evidence and the document is not proved it cannot be read in evidence and as such this issue should be held against the plaintiffs. Moreover, by the amendment of the plaint, the plaintiffs have prayed decree against defendants on the strength of Visar Pavti dated 12/4/1990 as can be seen from prayer-A. The original claim of the plaintiff for execution of agreement of sale has been given up by the plaintiffs and hence this document dated 25/10/1989 between the defendants no.19 and 20 on one hand and members of Nigade family on the other hand is not and cannot be treated as the suit agreement. In view of the above, it is submitted that this issue has no relevance now and if at all it has to be answered against the plaintiffs.
12] As regards issueno.2, these defendants submit that it is a Visar Pavti austemsibly the plaintiffs case is that they have entered into an agreement and the defendants have exected Visar Pavti. On the other hand it is the case of the defendants that they have taken loan from plaintiffs [plaintiff no.3] and since the plaintiff insisted that there should be some security. The plaintiffs obtained signatures on some documents which were illigeble and moreover since it was executed as a by way of security it was never to be acted upon and on repayment of the loan the said alleged Visar pavti was to be treated as cancelled and since the defendants-Nigade family repaid the loan taken by them from the plaintiffs as alleged Visar Pavti became null and void and not enforceable. In view of this the defendants submit that the document of Visar Pavti exh.239 has no relevance and cannot be enforced by filing suit as is being done by the present plaintiffs.
13] Moreover, even if we read the said document it can be seen that after the release of the land from acquisition, the plaintiffs wereto pay 50% of the agreed amount to the members of Nigade family which admittedly, the plaintiffs have not paid. Moreover, it is stated that on payment of 50% the members of Nigade family were to execute the agreement of sale. As such it is clear that the Agreement of Sale was being executed by the members of Nigade family in favour of the plaintiff and since there is no agreement of sale in favour of the plaintiffs executed by the members of Nigade family, the suit as framed of specific performance is not maintainable. It is clear that on the sttength of alleged Visar Pavti agreement of sale was to be executed and thus it can be definitely said that certain terms were not settled between the parties and after the terms and conditions to be agreed upon by and between the parties it was contemplated that the Agreement of Sale was come into existence. In view of these things there isno agreement of sale the suit for specific performance is not maintainable at law. This argument assuming without admitting that the members of Nigade family didreally executed Visar Pavti as it is their contention that the Agreement of Sale/Visar Pavti was never intended to be executed and since the plaintiff required some security it appears that the plaintiffs have brought into existence the said Visar Pavti.
14] As regards issue no.3 for the reasons stated for issue no.2 and since there is no agreement of sale in existence the suit is premature and since that unless an agreement of sale comes into existence there cannotbe a suit for specific performance for execution of Sale-deed. In view of this the finding on this issue should be in the affirmative holding that the suit is premature.
15] As regards issue no.4, these defendants submit that the suit is bad for non-joinder of necessary party. The defendant no.21 has filed his w.s. at exh. on it is clearly contended that certain members of Nigade family named there in were required to be joined as necessary party. In spite of this the plaintiff did not take steps till they filed application at exh.377 dated for bringing the defendants no.23 and 24 on record. In application at exh.377 the plaintiffs have clearly admitted that the joining of defendants no.23 and 24 is requires as they are necessay parties. Besides since the defendant no.23 and 24 have separate right,title and interest in the joint family property, they being tenants in common they are required to be joined as necessary parties. These defendants bring to the notice of the Hon'ble Court the provisions of Order-1 Rule-10 of C.P.C. and to Sec.21 of the Limitation Act clearly laying down the provisions of law that if a person is joined as party defendant then, the amendment does not relate back to the date of the suit but the suit must be deemed to have been filed against such defendants on the date when he is brought on record. This Hon'ble Court while passing order allowing the application at exh.377 has clearly observed that the point of limitation has been kept open. This court has not while granting the application contend the delay in fact and not much since there was total negligence on the part of the plaintiffs in making an application in spite of specific allegation and contention raised by the defendant no.21 in his w.s. Filed in the year 1996. It must he held that the plaintiffs were totally negligent and careless in bringing the necessary parties on record. Therefore, there is no question of condoning the delay. It has also been noted that in application exh.377 the plaintiffs never alleged any bona fide mistake or error on their part and not prayed for condonation of delay. In view of this the defendants no.23 and 24 must be deemed to have become party to the suit only at the most when application at exh.377 was filed. It can be seen from the plaint para-12 that the cause of action has been stated were occurred on 17/4/1995 or at the most on 27/5/1995 the limitation for filing the suit for specific performance or in the alternative for damages is three years and even assuming without admitting that there was any cause of action for the plaintiffs to file this suit. The limitation expires on 17/4/1998 or 17/5/1998. This amendment for bringing the defendants no.23 and 24 on record by an application at exh.377 its date is therefore beyond the period of three years and as such the suit is hopelessly barred by limitation and since the defendants no.23 and 24 being necessary parties the suit is liable to be dismissed in view of provisions of Order-1 Rule- of C.P.C. The defendants therefore, submit that even on this ground alone the suit is liable to be dismissed intoto and it be dismissed accordingly.
The defendant no.21 in reply the interrogatories exh.
that the document Agreement of Sale dated 16/9/1995 is in possession of defendant no.22[Altamash] and in spite thereof and with knowledge that defendant no.22 has purchased property. So also the defendant no.21 in his w.s. In the year 1996[exh. ] has contended that the defendant no.22[Altamash] has purchased portion of suit property in spite of these submissions and contentions raised by defendant no.21 in his w.s. As well as in reply to interrogatories the plaintiff did not take any steps against the defendant no.22 on record. The plaintiffs made application for bringing the defendant no.22 on record on and hence beyond period of limitation and as such whatever has been submitted in respect of defendants no.23 and 24 from bringing them as party on record equally applies the defendant no.22 and hence the suit be dismissed for want of necessary parties.
As regards issue no.6, these defendants submits that Subhash Nigade who has been examined at exh. has clearly admitted in evidence that they have delivered physical actual possession of 67-R of land out of suit property described in para-1b of the plaint and plaintiff executed Tabe Pavti which is produced on record being exh.239. So also defendant no.21 in his deposition has also stated on oath that the members of Nigade family have delivered to him actual physical possession of 67-R out of suit land. There is no material brought in cross-examination either of Subhash Nigade or of defendant no.21 to show that they are not in possession. Moreover, the plaintiffs do not claim possession which have been received from defendants i.e. members of Nigade family.
The allegations of the plaintiff is that these documents has been brought in existence by forging the same and being it has been prepared antidated. The plaintiff further alleged that since according to them it appears the signature of Bhimaji Nigade who is dead in the year 1994 the document is forged. To this the defendant Subhash Nigade in his deposition has stated that the documents have been prepared on the date which appears on the document itself and one of the document including the document of possession receipt are not indicated forged. It has been admitted by the plaintiff in his cross-examination during the deposition that he cannot say whether exh.239 bear the signature of Bhimaji. More over the defendants Subhash Nigade has ;stated that after the name of Bhimaji has been written the further portion namely “deceased by legal representatives has remained to be written. More over carefully scrutiny of the documents it can be said that ;all the legal heirs of Bhimajii has immediately signed below the same i.e. name written as Bhimaji. More over,this document has been attested by Executive Magistrate, Pune Sub Division, Pune which is gazetted Govt. Officer of Class I status and all the ;acts done by the Officer in discharge of his official duties has strongly presumption that even if . Besides that Adv.Shri. Parulekar had identified the signatories one cannot presumed that the Adv. had identified the dead person. Similarly when the documents is attested and without any remark it is beyond comprehension that Special Executive Magistrate attested the same without due care and cautions, it must therefore, be held most probable that all the persons ;who have signed the documents ;were present before the Spl. Executive Magistrate, and hence it is not signature of Bhimaji Nigade, which appears on the documents, but it is simply name ;written in the document and this document therefore, is totally legal, valid and having enforce.
This defendant submits that Defendant No.1 come to the conclusion that document is not properly stamped and requires ;to be impounded. This defendant and particularly defendant No.21 is ready and willing to pay requisite Court fee stamp along with penalty as; and when ;ordered by the Court. The Plaintiffs have brought in cross examination on record; of defendant No.21 filed by him before Supreme Court and he has made a statement that somebody himself have signed for and on behalf of defendants. However, since the Bhimaji is dead, there was no question of somebody signing these documents. It is a bona fide mistake made by defendant No.21 and instead of saying that somebody wrote the name of Bhimaji and has stated have remained to be written and in spite of that; he made ;such a statement at bar in the affidavit. Since it is a bona fide mistake, and improper, the same has to be ignored and the defendants prayed that it be paid in the context of explanation above . In view of this, these defendants submit that it be ;held that defendant No.21 is in possession of 67 Ares out of Suit ;land described in Para No.1B of the Plaint.
As regards Issue no.8, this issue is to be considered along with issue Nos. 8A and 8B. All these issues relates to whether Plaintiffs are entitled for Specific Performance of the contract on the; strength of the Visar Pavati dt. 12.4.90. Some of the argument in this respect ;has been summarised while submitting the argument on issue Nos. . in; addition to above submission, this defendant submits that the Plaintiffs are not an agriculturist. The suit lands are agricultural lands. As per the provisions of B.T. & A.L Act, non agriculturist cannot without the permission of Collector, or any other competent authority purchased the ;agricultural lands. More over the order pased by the Collector relating the lands described in para no.1B of the plaint specifically and clearly stipulates condition that the land has been released has to be used for the purpose of agricultural and not for any other purpose. Further the Plaitnffs in his deposition has admitted that they have never entered into the alleged transaction with members of Nigade family while obtaining alleged Visar pavati that the land intended by them to be used for the purpose of Development and construction of building and sell of shops, flats etc. Thus this clearly contravened the condition laid down by the Collector while realizing the land for acquisition, and on this ground also the plaintiffs are not entitled for the Specific performance. More over tenure of Visar Pavati is in the nature of Development agreement and it is settled provision of law that there cannot be specific performance of development agreement. For this reasons also these defendants submit that the Plaintiffs are not entitled for the Specific Performance of the said Visar Pavati. The Plaintiff No.3 who has been examined int his case has clearly admitted in his ;cross examination that they intended to use the suit lands for development and not for agricultural purpose.
As regards issue No.8B it is connected as stated above the Plaintiffs are not entitled for specific performance for the reasons submitted above. Besides the defendant No.2 is not signatory to the alleged Visar Pavati as submitted above, they are tenants in common and have not executed any Power of Attorney and authorized anybody to negotiate or deal with their shares in the suit lands. More over, the Plaintiffs have admitted in his cross examination that there was no talk at all between the lady defendants and the Plaintiffs and as such there is nothing on record to show that this defendant (lady defendant) have consented to any transaction alleged to have taken place between Male members of Nigade family and the Plaintiffs. So also since the suit against defendant No.23 and 24 is barred by limitation as against defendants No. 22, 23 and 24 the suit is liable to be dismissed. For the reasons stated above the Plaintiffs are not entitled for the specific; performance and the suit is liable to be dismissed. Therefore, issues Nos. 8A, 8B, 8C, and 8D may be answered in the negative holding that the plaintiffs are not entitled for the specific performance at all.
As regards issue no.7, these defendants submit that for the reasons which follow these defendants submit that it be held that plaintiffs are/were not ready and willing to perform their part of contract. Assuming without admitting the genuineness of the said Visar Pavti, these defendants submit that as per the said alleged Visar Pavti after the release of land on acquisition, the plaintiffs were pay half of the agreed price to the members of Nigade family and on payment thereof members of Nigade family were to execute the agreement of sale in favour of plaintiffs. Admittedly, the plaintiffs have not even alleged in the plaint that they have offered to pay 50% of the price to the members of Nigade family. Not only this in the cross-examination ofplaintiff no.3 he has admitted that they have not offered to pay half price at any time to the members of Nigade family and as such it must be held that they were not willing to perform their part of the contract. Another point to be considered on the point of ready and willing is that the plaintiffs were to take all steps for getting the land released from acquisition though the plaintiffs alleged that they have engaged Adv. Kulkarni for getting the land released and have examined Mr. R. D. Kulkarni at exh.
as ther witness. It has come in the cross-examination on record that except the bare words of R. D. Kulkarni there is nothing on record to show that plaintiffs engaged Adv. Kulkarni before the Collector. In cross-examination R. D. Kulkarni has to admit that he was engaged by Nigade and not by plaintiffs. On behalf of defendants, it is their case that members of Nigade family engaged Mr. Rane to get their land released from acquisition and that defendants Subhash Nigade has clearly admitted in his examination-in-chief and in his evidence that defendant no.21 has rendered substantial help including making payment of advocate getting the land released from acquisition. Shri. Rane Adv. has been examined as witness on behalf of defendant no.21 and he has admitted that he was engated by Nigade and Sajidbhai for getting the land released. He appeared before the Commissioner for the guidelines settled for release of land from acquisition and the commissioner remanded the matter to the Collector for decision. Collector was accepted to decide the matter after remand on the basis of guidelines issued by the Commissioner. Shri.Rane has further stated that he prepared arguments which is filed before the Collector after remand and handed over the same to member of Nigade family who obtained the signature of Shri. R. D. Kulkarni and file the same. It has come in his evidence of R.D. Kulkarni as well as Shri. Rane that both these advocates are friends of each other and they were appearing either side for and against each other before the revenue authorities in various matters. It is therefore more probable that Rane prepared the argument and members of Nigade family obtained the signature of R.D. Kulkarni and file the same. In view of this it is clear that plaintiff did not take any steps to get the land released from acquisition. The plaintiffs have produced during the cross-examination of Subhash Nigade certain documents in the application made by Nigade family to the revenue authorities for release of land. The defendant Subhash Nigade has clearly explain as to how plaintiffs came in possession of such applications. The explanation occurred by defendant Subhash Nigade is that since the suit amounts were given to the plaintiffs as and by way of security, the plaintiffs were insisting on the defendants the members of Nigade family that whatever applications they would make to the revenue authorities for release of land they should be handed over to them for their record. This infact is true state of affairs as to how these applications come in the possession of the plaintiffs. Therefore, it has to be held that it is the defendants and Sajidbhai together were responsible of getting the land release from the acquisition. The other reasons in support of this are contend in the submissions made on issues no.
The plaintiffs have come before the court with clean hands even on going through the alleged Visar pavti it can be seen that the plaintiffs are entitled only 67-Rs And were never entitled to 77-Rs. In spite of this all in their letters notices through advocates and even in the suit, the plaintiffs are claiming specific performance of 77-R to which they were never entitled to. This is an additional ground in support of the contention that the plaintiffs were never ready and willing to perform their part of contract and they want to take unfair advantage of the document which was never to be acted upon as submitted by these defendnts.
ISSUE NO.5 : The defendant no.21 submits that the members of Nigade family agreed to sale the whole of the suit lands described in para-1A of the plaint after the lands are released from the acquisition. However, for the time being the land described in para-1B of the plaint are released and out of this 67-R are to be purchased by the defendant no.1 and accordingly Agreement of Sale[Sathekhat] has been executed in his favour on 21/1/1989. Thus, tis agreement of sale is prior in time not only of the plaintiffs Visar pavti dated 12/4/1990 but also prior in time of the alleged agreement between members of Nigade family and defendant no.19 and 20. As regards this agreement between Takle and Khoja defendant no.19 and 20 and Nigade family it is dated 5/10/1989 without prejudice to submissions already made these defendants submit that even this agreement dated 25/10/1989 in favour of Khoja and Takle it has been treated by and between the parties thereto as cancelled and therefore, even assuming without admitting that the plaintiffs have purchased the rights from Takle and Khoja the same being later in time cannot have any effect on the agreement dated 21/1/1989 with these defendants by members of Nigade family.
The plaintiffs are alleging that this document and two other documents of 1995-96 have been created subsequently and these documents are forged and anti-dated. However, the plaintiffs who are not parties to the said document the persons who have executed agreement agreed and confirmed that such documents were executed by them and in view of this when the plaintiffs executing the document at least execution thereof and also their validity the plaintiffs cannot challenged validity of the same by alleging that the said documents are forged and of anti-dated. It was suggested bythe plaintiffs in cross-examination of this defendant no.21 that all these documents were typed on same typewriter. Even assuming that they are typed on the same typewriter itcannot be said merely on the same ground that these documents have been prepared at one and same time and that too after the dates on which the dates clear on the document. Similarly it has been suggested that the ink is the same. The same analogy lies that even if the ink is same it cannot besaid that the documents are prepared at one and same time and also on that ground it can be said that they are anti-dated.
It is also submitted that the defendants who appear before the court and in the presence of the Nazir of the court of official sign in his presence was that the signatures can be sent for comparison and to determine their genuineness through the hand writing expert and since these defendants did not appear as per the directions of the order of the court the plaintiffs have already submitted and are likely to submit again during the course of arguments that the adverse inference be drawn against the defendants for not appearing before the Nazir and not making signatures in his presence. The question of attesting the genuineness of the signatures arises merely when the person executing the same denies that it is his signature and alleges that somebody has forged his signature. In the present case the defendants have right from the beginning admitted that they have executed the documents in favour of the defendants no.21 and 22. This not only they have stated in examination-in-chief but also they have admitted same in their w.s. Long back after the service of suit summons. In view of this these defendants submit that no adverse inference can be drawn as has been submitted or being submitted by the plaintiffs.
The other contentions of the plaintiffs is that the documents were not produced before the court when the defendant no.21 and 22 appear in the court. These defendants submit that filing of documents and filing of xerox copies at the time of filing w.s.etc. is the requirement of the Civil Procedure Code as amended and in force from 2002 and not prior to that. However, there are number of instances where the documents were produced much late. However, moreover the defendant no.21 has stated in his cross-examination that he was required to produced the documents at the relevant time . He further stated in his cross-examination that he was told[by his advocate] to produce the documents as somebody advised by him and therefore, merely because the documents were not produced immediately on the appearance of defendants no.21 and 22 no adverse inference can be drawn against them and no cognizance can be drawn that the documents were forged and of anti-dated. In view of the submissions made above, it is submitted that it be held that the document dt.21/1/1989 is valid, legal and binding on the defendants that members of Nigade family and as such it be further held that defendant no.21 has proper claim of purchase of suit land.
The plaintiffs has amended the plaint and filing application exh.292 and thereby incorporated para-9A and thereby contended that all these documents produced with exh.234 and 251 are the coercion of collusion between members of Nigade family and defendants no.21 and 22. It has been further alleged that all these documents are anti-dated,forged and were brought in existence after filing of the suit and not on the date as appear on the respective documents and by this amendment instead of prayer for directions to the defendants to execute Agreement of Sale the plaintiffs instead prayer for direction to the defendants to execute Agreement of Sale have made prayer to execute the Sale-deed in their favour on the strength of Visar Pavti dated 12/4/1990. As regards the plaintiffs entitlement to claim the decree for execution of Sale-deed in his favour the arguments have been already advanced above. This argument is being only as to whether the amendment as sought for and granted by the court could have been allowed and whether it changes the nature of the suit etc. The defendant no.21 challenged this order below exh.292 passed by this court allowing the application and amended in the plaint and the Hon'ble High Court in Writ Petition no. kept open by Judgment dated . Seems this point has been kept open these defendants submit that the amendment is misconceived and is much belated. In addition to that it changes the nature of suit it further changes the cause of action it is against the alleged Visar Pavti dated 12/4/1990. This says that on payment of 50% of the agreed price the Agreement of Sale [Sathekhat] was to be executed in favour of the plaintiffs and since then amendment could not have been allowed the amended clause-9A and other consequential amendment made in plaint bedirected to be deleted and in view of this it is further submitted that issue no.7A does not at all arise.
As regards issue no.7A we have already submitted that since the amendment in clause-9A could not have been allowed and should be strucked of the question of finding on issue no.7A does not arise. In fact issue no.7A does not arise. It is submitted that since the defendants who have executed the documents without admitted their genuineness, correctness and validity it cannot be said that plaintiffs can challenged the same who is not a party to the documents. Furthermore, this document have been admitted not merely in the evidence before the court but while filing w.s. And as such the documents made in pleadings are superior to any admission was continuously made by any party while deposing before the court. In support of this these defendants rely on the case reported in
As regards issue no.7B these defendants submit that since the documents are of 1989 and 1995-96 it challenged there to be made by filing application at exh.299 which is dated . The existence of these documents have been brought on record by defendant no.21 when he filed his w.s. Exh. in 1996. In view of this the application made on [exh.292] is beyond period of three years from the date of knowledge and as such the relief of declaration assuming without admitting that the plaintiffs are entitled to is beyond limitation and as such barred by law. These defendants submit that this issue no.7B be decided in negative and it be held that the relief for declaration is beyond the period of limitation.
ISSUE NO.9 : These defendants submit that since plaintiffs are not entitled to relief of specific performance there is no question of awarding damages in view of specific performance. The question of damages arises only when court finds that the plaintiffs are entitled for specific performance but in the given circumstances it would not be proper and just to grant relief of equitable relief of specific performance then only the question of considering the point of damages arises. In view of this first submission is that the plaintiffs are not entitled to alternative relief of damages. The question of alternative relief arises only when the question of specific performance is decided in favour of the plaintiff but court finds unjust to grant specific performance but finds fit to award alternative relief of damages. As earlier submitted the plaintiffs are not at all entitled to relief of specific performance the question of consideration of alternative relief of damages does not arise.
Without prejudice to the submissions made above, let us consider the evidence laid by the plaintiffs and his witness. The plaintiff has not made any direct evidence in his deposition on this point. The valuer has been examined at exh.225 and his report is at exh.229. Mr. Pravin Shah who has Govt. Approved valuer has submitted his report dated 18/7/2005 at exh.229 and has been examined at exh.225. In his examination-in-chief he has stated that he has collected stamp duty from ready recknor from 2005 from the concerned office and that he has calculated the rateof land as per ready recknor and has come to the conclusion that the value of the land in para-1A is to the tune of Rs.2,25,25,000/- in the year 1995. During his cross-examination he has to admit that annexure under the heading business lines dated 17/7/2005 is annexed by him but he cannot give the name of author and the correctness thereof. Further he has clearly admitted in his cross-examination that he never participated in land acquisition proceeding and that ready recknor supplied along with exh.229 is the only basis for valuation of the suit property. In view of this it is submitted that the valuation report has no value at all. In this respect these defendants bring to the notice of this Hon'ble court the rulings of Supreme Court reported in is clearly made out that the valuation as per ready recknor cannot be basis of valuation but they are only relevant for the purpose of stamp duty. In view of this rulings and the laws laid down by the Supreme Court, these defendants submit that there is no evidence at all on the contempt of damages and report of the valuation is not the work on which it is printed and hence has to be rejected. It is therefore, submitted for the above reasons this issue be decided in the negative and it be held that the plaintiffs are not entitled for the alternative relief for all these submissions made above, these defendants submit that the plaintiff has miserably failed to prove his case. In fact the plaintiff has filed the suit which is false and vexatious and has deprived the defendants all the fruits of the suit transaction between defendants no.21 and 22 on one hand and members of Nigade family on the other hand and as such these defendants submit that they are entitled to compensatory costs and these defendants being awarded compensatory costs for the same as the court may deemed fit.
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