Shaikh Abdul Wahid & Anr vs Bilal Padiyar Since Deceased

C.V. Bhadang, J

The challenge in this appeal is to the judgment and decree dated 11th February 2020 passed by the learned Ad-hoc District Judge at Pune in RCA No.232 of 2012. By the impugned judgment the First Appellate Court, has dismissed the appeal filed by, the appellant and partly allowed the Cross objection filed by the respondent. The net result is that there is a decree of eviction passed against the appellants directing them to hand over the vacant possession of the suit premises to the respondents.

The brief facts necessary for the disposal of the appeal may be stated thus :-

That the respondent late Bilal Padiyar (Original Plaintiff) was in the business as a Promoter and Developer. Late Bilal Padiyar had constructed a building on Land Survey No.62 Hissa No. 7+8/1 at Wanowarie, Pune which was named as Empire Landmark. The subject matter of dispute happens to be Flat No.604 having a built up areas of 650 sq.ft. on the 06th floor of the building Empire Landmark which is hereinafter referred to as the “Suit Flat”. According to the plaintiff he had employed the appellant No.1 Shaikh Abdul Wahim (Defendant No.1) as a Computer Operator on 4th April 2000 as the plaintiff in the course of his business was required to prepare draft of several agreements to be executed by the prospective purchasers of the flats.

It is the case made out in the plaint that the plaintiff was paying a salary of Rs.6,500/- to the appellant No.1 Shaikh Wahim (Defendant No.1). It was contended that on account of a long association between the plaintiff and the defendant No.1 the plaintiff had developed full faith in the defendant No.1 and used to blindly sign and execute the documents/agreements, prepared by the defendant No.1 without going through the same. It was contended that the plaintiff used to advance money to the defendant No.1 as an when required. The plaintiff had advanced an amount of Rs.4 lakhs to the defendant No.1 in cash from time to time, during the period from 04th April 2000 to 04th February 2003. It was contended that the defendant No.1 has also repaid such amounts from time to time by cheque.

It is the material case that the defendant No.1 at the relevant time was residing at Nana Peth, Pune. The defendant No.1 represented the plaintiff that he wanted to take admission of his children in the convent school at Wanoworie Cantonment and also on account of some family bickerings the defendant No.1 was required to leave his house at Nana Peth, Pune. It is thus contended that the defendant No.1 was allowed to the flat temporarily for his residence. It was contended that the plaintiff had no intention to sale the said flat to the defendant No.1. The defendant No.1 had assured to vacate the suit flat whenever the plaintiff was able to find a buyer for the same. In short according to the plaintiff the defendant No.1 was permitted to temporarily occupy the suit flat in the aforesaid circumstances. It was contended that subsequently the defendant No.1 represented that the school authorities were asking for residence proof and had therefore requested the plaintiff to issue some document showing the address proof. It is contended that the defendant No.1 therefore, prepared a document dated 05th March 2002 (Exhibit.59) which was singed by the plaintiff. After a couple of months the defendant No.1 sought permission from the plaintiff to have furniture and fixtures in the suit flat when the plaintiff informed the defendant No.1 that he was looking for a customer and the suit flat was to be sold. However, the defendant No.1 surreptitiously started the work of furniture and fixtures in the suit flat.

In short according to the plaintiff the suit flat was given to the defendant No.1 temporarily for residence and the document Exhibit.59 was got executed by practicing misrepresentation and fraud. It was contended that the said document is sham and bogus.

It is in these circumstances, that the plaintiff filed Special Civil Suit No.543 of 2004 against the appellants before the learned Senior Civil Judge at Pune for the following reliefs:

“A) The Hon’ble Court may be pleased to declare that the so-called documents dated 5/3/2002 dishonestly and fraudulently got signed by the Defendant No.1 from the Plaintiff, by exercising fraud, deception and misrepresentation, is/are illegal and void ab initio and that the same does not confer any right, title, interest of the Defendant No.1 & 2 in respect of flat described in para 1 above, belonging to the Plaintiff.

B) The Hon’ble Court may be further pleased to declare that the so-called documents dated 5/3/2003 is, even otherwise illegal and void ab initio and of no consequences whatsoever, the same being hollow and does not vest Defendant Nos.1 & 2 with any right in respect of the said flat as described in para 1 above.

C) The Hon’ble Court may be pleased to pass a decree for possession of the said flat described in para 1 above in favour of the Plaintiff and against the Defendant Nos.1 and 2.

D) Ad-interim reliefs of injunction, restraining the Defendants from parting with the possession of the said flat except in favour of the Plaintiff and from creating third party interest therein, may kindly be granted in favour of the Plaintiff and against the Defendants.

E) The Defendants be ordered to pay Rs.1,60,000/-as and by way of damages / compensation as detailed in para 8 herein above to the plaintiff.

F) The Hon’ble Court may be further pleased to direct the Defendants to pay by way of compensation for wrongful use of the said flat of Rs.10,000/- per month from the date of suit till the date of recovery of possession by the Plaintiff of the said flat.

G) Such other orders, as may be deemed, just and proper be passed.”

The suit was resisted on behalf of the appellants. It was contended that the (appellant No.1) defendant No.1 has filed a complaint before the Consumer Disputes Redressal Forum at Pune (Consumer Forum) bearing No.201 of 2003 seeking execution of the Sale Deed of the suit flat which is pending. It was contended that for this reason alone the suit was not maintainable. It was not disputed that the plaintiff was a Promoter, Developer and Builder and had constructed the building ‘Empire Landmark’. However all other adverse allegations were denied. It was denied that the defendant No.1 was working as a Computer Operator on a salary of Rs.6,500/- per month from April 2000 to February 2003. It was contended that the defendant No.1 was working with the plaintiff as an accountant. It was denied that the plaintiff used to advance money to the defendants or the plaintiff having advanced the amount of Rs.4 lacks as alleged.

It was the material case made out that the plaintiff and the defendant No.1 were friends. The defendant No.1 was residing at Dubai and had come back to the India in the year 1996, with an intention to settle down at Pune. At that time the plaintiff had newly started business of construction and was intending to develop the plot at Wanoworie. For that purpose the plaintiff had requested to defendant No.1 to accommodate him with an amount of Rs.2 lakhs assuring to repay the same. Considering the friendly relations and with an intention to help the plaintiff, the defendant No.1 gave a “hand loan” of Rs.2 lakhs to the plaintiff through a Demand Draft. It is contended that the defendant No.1 called upon the plaintiff to repay the said amount along with interest in May 2003. However, the plaintiff failed to do so. It is at that time that the plaintiff had offered the defendant No.1 to sell the said flat for a consideration of Rs.4 lakhs. Acting on the proposal the defendant No.1 issued a cheque dated 05th February 1991 for Rs.4 lakhs in the name of ‘Empire Construction’, as and by way of consideration, for purchase of the suit flat and also paid Rs.15,000/- by cheque dated 18th December 2002 as part of one time society charges of Rs.30,000/-. It is the material case made out that the plaintiff failed to execute the agreement of sale as assured. It was contended that the possession of the suit flat was handed over and accordingly the defendant No.1 executed the document dated 05th March 2002 (Exhibit.59) and assured to execute the Sale Deed later on, which he failed to do.

The adverse allegations about any representation being made to the plaintiff that the defendant No.1 wanted some address proof in order to enable him to take the admission of his children in the convent school at Wanoworie, were denied. It was also denied that the defendant No.1 was required to leave the house at Nana Peth on account of family bickering. In short according to the defendants the suit flat was put in possession of the defendants as against the payment of full and final purchase price of Rs.4 lakhs. It was contended that the tax receipt in respect of the suit flat was issued in the name of the defendant No.1. It was denied that the document (Exhibit-59) was the outcome of any fraud or misrepresentation. It was contended that the plaintiff with a view to harass the defendants had cutoff the electricity supply to the suit flat, as a result of which, the defendants were required to file Civil Suit RCF No.988 of 2003 and the electricity supply was eventually restored in pursuance of the order passed by the District Court in Miscellaneous Civil Appeal No.281 of 2003. It was thus contended that the suit be dismissed.

On the basis of the rival pleadings the learned Trial Court framed the following issues.

Sr. No.

ISSUES

1

Does plaintiff prove that document dated 5/3/2002 got signed by defendant No.1 from plaintiff dishonestly and fraudulently ?

2

Whether so called document dated 5/3/2002 is void, ab-initio ?

3

Is plaintiff entitled to get possession of flat described in para 1 of the plaint ?

4

Is plaintiff entitled to get Rs.1,60,000/- by way of damages / compensation ?

5

Is plaintiff entitled to get compensation of Rs.10,000/- per month towards wrongful use of flat by defendant No.1 ?

6

What relief and order ?

The plaintiff Bilal Padiyar examined himself along with Haridas Soalnkar (PW-2) while the appellant No.1 examined himself. Both the parties produced documents.

The learned Trial Court answered Issue No.1,2,4 and 5 in the negative and Issue no.3 in the affirmative. The learned trial Court by a judgment and decree dated 17th February 2012 decreed the suit directing the appellants to hand over possession of the suit flat. The trial Court also directed inquirying future mesne profits.

Feeling aggrieved the appellants challenged the same before the learned District Judge in Civil Appeal No.232 of 2012. The respondent (Original Plaintiff) filed a Cross Objection in order to challenge the adverse finding against certain issues.

The learned District Judge framed the following points for determination.

Sr. No

ISSUES

1

Whether the document dated 05/03/2002 was got signed dishonestly and fraudulently?

2

Whether the document dated 05/03/2002 is void, ab-inito ?

3

Whether the respondent agreed to sale the suit flat to the appellant ?

4

Whether the respondent is entitled to seek possession of the suit flat ?

5

Whether the decree of the Trial Court is perverse ?

6

Whether the Trial Court had jurisdiction to try the matter ?

7

What order ?

The learned District Judge answered the point Nos.1,2,4 and 6 in the affirmative and point Nos.3 and 5 in the negative. The learned District Judge by the impugned judgment and decree dated 11th February 2020 has dismissed the appeal and partly allowed the Cross Objection which brings the appellants to this Court.

I have heard Mr.Kanetkar, the learned counsel for the appellants and Mr.Dhakephalkar, the learned Senior Counsel for the respondents. With the assistance of the learned counsel for the parties I have gone through the record.

Mr.Kanetkar, the learned counsel for the appellant has submitted that the suit as framed and filed, simplicitor for possession was not maintainable under Section 34 of the Specific Relief Act. It is submitted that the plaintiff failed to seek a declaration of title/ownership and in the absence thereof the suit was not maintainable. Secondly, it is submitted that the first Appellate Court was not justified in reversing the finding recorded by the trial Court about document Exhibit.59 without recording proper reasons, as mandated by Order XLI Rule 31 of the Civil Procedure Code. It is submitted that the lower Appellate Court is not justified in reversing the finding in respect of the document Exhibit-59 and that finding is against the weight of the evidence on record and is perverse. It is submitted that First Appellate Court ought to have seen that there were no pleadings about fraud and misrepresentation much less there was any proof. It is submitted that it is the settled position that a case of fraud and misrepresentation has to be specifically pleaded with necessary particulars and has to be proved. It is submitted that the receipt of the amount of Rs.4 lakhs is not disputed and therefore this would probablize the case of the appellants that they were put in possession of the suit flat on payment of purchase price. It is submitted that the parties were close friends and the appellant No.1 had paid Rs.2 lakhs to the respondent in the year 1998 much prior to the appellant No.1 being employed as an accountant in the year 2000 and therefore the appellants relied upon the assurance by the plaintiff that an agreement of sale/conveyance would be executed. It is submitted that the case made out that the defendant No.1 had represented the plaintiff to issue a document showing his address proof as the defendant No.1 intended to obtain the admission of his children in the convent at Wanoworie Cantonment is not acceptable, inasmuch as the children were admitted in the said convent much prior to 2002.

Mr.Dhakephalkar, the learned Senior Counsel for the respondents has supported the impugned judgment. It is submitted that admittedly there is no registered document of conveyance or an agreement for sale executed in favour of the appellant and in the absence thereof, the appellant cannot claim any ownership in the suit flat. It is submitted that admittedly the flat was constructed by the original plaintiffs in the building ‘Empire Landmark’. It is submitted that the defendant No.1 was temporarily allowed to occupy the said flat on his own representation.

It is submitted that the document Exhibit-59 is only in the form of a certificate and has no legal effect. The learned counsel pointed out that it was the appellant No.1 who was maintaining the accounts and it was the appellant No.1 who intimated about alleged purchase of the same to the Municipal Corporation, on the basis of which the tax registration was obtained. It is submitted that in any event in the absence of any document of title in favour of the appellant he cannot seek any protection from eviction.

I have carefully considered the rival circumstances and the submissions made. Notwithstanding the detailed narration of the rival pleadings and the submissions, the dispute falls in a narrow compass. It is undisputed that the appellant No.1 and the respondent Bilal Padiyar were friends and were having cordial relations. After the appellant No.1 had returned from Dubai with an intention to settle down at Pune, he had accommodated the respondent No.1 with an amount of Rs.2 lakhs somewhere in the year 1998 which would show that the parties were having cordial relations. It has also come on record that the appellant No.1 was working with the respondent as an Accountant/ Computer Operator from 1999 to 2003. The case of the respondent is that the appellant No.1 was allowed to temporarily occupy the suit flat for two reasons. First according to respondent a representation was made that on account of some family bickerings the appellant No.1 was required to shift his residence from Nana Peth and secondly that in order to get his children admitted to the school at Wanoworie Cantonment the appellant was in need of address proof. The respondent claimed that owing to the faith between the parties and acting on the representation the document at Exhibit-59 was obtained by the appellant No.1 by fraud and misrepresentation.

On the contrary according to the appellant the full consideration of Rs.4 lakhs was paid to the respondent No.1. It was the respondent No.1 who had represented and proposed to sell the suit flat to the appellant No.1, as he was enable to repay the amount of Rs.2 lakhs along with interest which was advanced to the respondent No.1 in the year 1998.

In order to appreciate the rival contentions it is necessary to reproduce the document at Exhibit-59 which reads thus:-

“5th March 2002

TO WHOMSOEVER IT MAY CONCERN

This is to inform that we have sold flat No.604, on the sixth floor of ‘B’ building to Mr. SHAIKH ABDUL WAHID ABDUL GAFUR in our scheme “EMPIRE LANDMARKS” situated at Survey No.62, 7-8/1, Waowrie, Pune – 411 040.

We have given Mr. Shaikh Abdul Wahid possession of the Flat No.604 and he is residing since 14-9-2001.

This letter is issued upon his request.

Thanking you,

Yours truly,

For Empire Constructions,

Bilal Essak Padiyar

Proprietor”

It is true that the learned Trial Court had refused to hold that the document Exhibit-59 was a result of fraud and misrepresentation. However, the First Appellate Court has answered Point No.1 in the affirmative holding that the said document was got signed fraudulently. The First Appellate Court has held that there was an element of faith between the parties and it was the appellant No.1 who was handling the accounts and preparing the the agreements which were singed by the respondent No.1. In my considered view, nothing much turns on the question whether the said document is got executed dishonestly and fraudulently inasmuch as the document can never be considered as a title document or even an agreement of sale or an agreement contemplated under Section 4 of the Maharashtra Ownership of Flats Act (MOFA).

A bare perusal of the document shows that it is in the form of a certificate certifying that the appellant No.1 was in possession of the said flat from 14th September 2001. In my considered view, the appellants cannot resist the impugned judgment and decree on the basis of the said document. It is necessary to note that under the Transfer of property Act, the transfer of immovable property of the value more than Rs.100/- has to be by registered conveyance.

Even so far as payment of Rs.4 lakhs and the part of the one time society charges are concerned the Appellate Court has found that the ledger account of the Empire Constructions (Exhibit-85) were in the handwriting of the appellant No.1. The First Appellate Court has found that although there were details of the other entries, made in the ledger account, the amount of Rs.4 lakhs or the amount paid as the one time maintenance charges did not contain any such details in the ledger account. Insofar as the extract of the tax registers Exhibit-36 and 37 are concerned the First Appellate Court has found from the letter Exhibit-43 that it was the appellant No.1 who had communicated to the corporation that he was the purchaser of the suit flat. That intimation is not shown to be ignored by the respondent no.1. Looked from any angle it appears that in all probability on account of the close relations between the parties the appellant No.1 was merely allowed to reside in the suit flat.

The contention that the respondent ought to have sought for declaration of ownership to my mind cannot be accepted.

This is because the respondent No.1 was admittedly the owner of the land survey No.62, Hissa No.7-8/1, Wanoworie-Pune and was the Promoter of the building Empire Landmark. Infact the appellant No.1 is claiming to be the purchaser from the respondent No.1 and therefore cannot possibly dispute the ownership/title of the respondent no.1 over the suit flat. The document Exhibit-59 as reproduced above is anything but a document of title. Thus in the absence of any cloud on the title of the respondent No.1 over the suit flat it is not possible to accept that the respondent No.1 was obliged to seek a declaration of title/ownership.

The contention that the First Appellate Court without coming into close proximity with the finding and reasoning of the trial Court has reversed the finding insofar as the nature of the document Exhibit-59 is concerned also cannot be accepted. A careful perusal of the impugned judgment of the First Appellate Court shows that the Appellate Court has considered the pleadings of the plaintiff, the admitted facts and the evidence on record to come to such finding. However, as indicated earlier this would not be decisive inasmuch as, nothing would turn on the question whether the document is an outcome of fraud or misrepresentation or otherwise, inasmuch as the document can neither be a title document nor an agreement of sale or an agreement contemplated under Section 4 of the MOFA Act.

I have carefully gone through the impugned judgment of the First Appellate Court and I do not find that it suffers from any infirmity so as to require interference. The appeal does not raised any substantial question of law. In the result the appeal is hereby dismissed, with no order as to costs.

Decree be drawn accordingly.

At this stage, the learned counsel for the appellants, submits that the Appellate Court has stayed the decree in order to enable the appellant to approach this Court. He seeks continuation of the said relief for a reasonable period.

The learned Senior Counsel for the respondents states that in the event the protection is extended, the appellants be put to condition that they will not create any third party interest in the suit flat.

In such circumstances, the interim order granted by the First Appellate Court shall continue for a period of six weeks. This shall be subject to the condition that the appellants shall not part with the possession of the suit flat or create any third party rights or interest, therein.