Chandrakant Dwarkoji Avsekar & Ors. vs Ambadas Ramchandra Rote & Ors.

The Appellants/original defendants impugn Judgment and Decree dated 20^th March 2025 passed by District Judge, Solapur in Regular Civil Appeal No.333 of 2012, thereby upholding Judgment and Decree dated 4^th August 2008 passed by Civil Judge, Senior Division, Solapur in Special Civil Suit No.437 of 1999 by which suit of original plaintiff has been decreed granting relief of delivery of possession in respect of suit property.

The Respondents/original plaintiffs instituted Special Civil Suit No.437 of 1999 in Court of Civil Judge, Senior Division at Solapur seeking relief of possession and compensation in respect of suit house property. The defendant Nos.1 to 5 are owners of City Survey No.8340/3/2 situated at Railway Lines, Solapur. There was old construction on suit property. The defendants were intending to develop suit property. The deceased plaintiff is in business of construction and development. There was negotiations between plaintiff and defendants. The Development Agreement dated 3^rd August 1990 alongwith Power of Attorney was executed in favour of plaintiff by defendants for construction of suit property. At the time of execution of Development Agreement, some tenants were in occupation of property. The plaintiff was under obligation to construct first wing of site and hand over possession of two flats to defendants. Thereafter, possession of rest of part of suit property, as described in plaint paragraph No.1, was to be handed over. In terms of agreement, plaintiff has completed construction work of first wing, handed over possession of two flats to defendants and made additional payment of Rs.60,000/- to each of defendants, however, defendants failed to hand over vacant possession of balance area. Initially, plaintiff filed Regular Civil Suit No.164 of 1999 claiming relief of injunction. However, since area, as described in plaint paragraph No.1B was in possession of defendants, plaintiff constrained to withdraw suit and filed present suit for relief of possession and compensation.

In response to suit summons, defendants caused their appearance in suit. The defendant No.2 filed his written statement. However, other defendants proceeded without written statement. The defendant No.2 admitted ownership of defendants over suit property. He admitted execution of Development Agreement as well as Power of Attorney in favour of plaintiff, however, alleged that these documents are procured by practicing fraud and misrepresentation on defendants. It is contention of defendants that signature on blank stamp papers were utilized for bringing documents in existence.

In light of pleadings put forth by parties, issues were framed. The plaintiff examined himself and recorded evidence of Advocate Shri Shashikant Machale. The witnesses on documents namely Nandkumar Kulkarni and Ravindra Upalikar stepped into witness box on behalf of plaintiff. Accordingly, Development Agreement and Power of Attorney were exhibited. Although defendant No.2 has filed his written statement, he do not enter into witness box. The defendant No.1 recorded his evidence, but without putting his pleadings in suit. The trial Court after considering pleadings, evidence and submissions of parties, accepted plaintiff’s case and decreed suit directing defendants to deliver possession of suit property, as described in plaint paragraph No.1B to plaintiff, however, claim for damages came to be rejected.

The aggrieved defendants filed Regular Civil Appeal No.333 of 2012 before District Judge at Solapur, who pleased to dismiss appeal upholding Judgment and Decree passed by Trial Court.

Mr. Surel Shah, learned Senior Advocate appearing for Appellant would submit that previously, plaintiff had instituted Regular Civil Suit No.164 of 1999 on the basis of same cause of action. The suit has been unconditionally withdrawn, hence, bar under Order 2 Rule 2 of Code of Civil Procedure (For short, ‘CPC’) would apply. Further, in absence of pleadings as to readiness and willingness to perform part of contract, suit could not have been decreed. He would further submit that Development Agreement is unregistered document and same cannot be read in evidence. According to Mr. Shah, Development Agreement was entered with partnership firm, whereas plaintiff has filed suit in his individual name which is not tenable.

Per Contra, Dr. Warunjikar, learned Advocate appearing for Respondents supports impugned Judgment and Decree. He would point that defendant No.2 filed written statement taking plea of fraud, misrepresentation or coercion, however, did not step into witness box. The evidence of defendant No.1 is without pleadings. Further, his evidence supports case of plaintiff on point of execution of Development Agreement and Power of Attorney. Both the Courts have concurrently recorded findings of facts upholding plaintiff’s case and decreed suit. No substantial question of law arises for consideration in Second Appeal.

Having considered submissions advanced by learned Advocates appearing for respective parties, it can be observed that Respondent-plaintiff has instituted suit for reliefs of declaration and possession on basis of Power of Attorney and Development Agreement. The defendant No.2 filed written statement with pleadings that signature obtained on blank stamp papers misused for creating documents. However, to justify aforesaid pleadings, he did not step into witness box. The defendant No.1 entered into witness box and recorded his evidence without pleadings. The trial Court rightly observed that evidence of defendant No.1 goes to show that execution of aforesaid documents is admitted to defendants. Further, he admitted signatures on documents. He also admitted that in pursuance to Development Agreement, plaintiff has handed over two flats to defendants after completing construction of first part. The receipt of consideration amount through five cheques by defendants is also admitted.

In that view of matter, there is no scope to accept challenge raised to execution of Development Agreement and Power of Attorney by defendants in favour of plaintiff. Both Courts are justified in recording concurrent findings to that effect.

Mr. Shah, learned Senior Advocate for Appellants submitted that in absence of readiness and willingness to perform part of contract, suit could not have been decreed, however contention of Mr. Shah cannot be countenanced for simple reason that present suit is filed for relief of possession on basis of Development Agreement coupled with Power of Attorney. This is not a suit for specific performance of contract, where requirement contemplated under Section 16(c) of Specific Relief Act, 1963 has to be complied with.

Mr. Shah would further contend that in wake of withdrawal of Regular Civil Suit No.164 of 1999 filed by plaintiff, present suit is barred by Order 2 Rule 2 of CPC. The minute reading of plaint in Regular Civil Suit No.164 of 1999 would depict that it was suit for declaration about existence of Development Agreement and Power of Attorney and secondly, for relief of perpetual injunction. The suit was instituted on basis of cause of action arose on 3^rd August 1990, and lastly on 9^th February 1999 when defendants obstructed work and on 12^th February 1999, when defendants published notice in newspaper. However, present suit is filed for relief of possession on cause of action occurred in 1999, when defendants refused to handover possession of part of suit property, which continued in possession of defendants. Apparently, reliefs claimed in both suits are different and based on independent cause of action. The bar under Order 2 Rule 2 of CPC would operate only when cause of action in both suits is identical. Pertinently, Regular Civil Suit No.164 of 1999 has been withdrawn by plaintiff after institution of present suit. In this backdrop, contention of Mr. Shah cannot be countenanced.

Lastly, Mr. Shah endeavour to contend that Development Agreement was executed in name of partnership firm, but plaintiff has instituted suit in individual capacity. The perusal of Development Agreement depicts that in title clause, name of plaintiff is recorded as M/s. A. R. Rote and Brothers, Proprietor Ambadas Ramchandra Rote, however, agreement nowhere depicts that M/s. A. R. Rote and Brothers is partnership firm. Further, aforesaid objection was not raised any time before Courts below.

In result, no substantial question of law arises for consideration in this Appeal.

Second Appeal stands dismissed.

In view of disposal of Second Appeal, Interim Application also stands disposed of.