Bombay High Court
Ghanshyam S/O Budhaji Khobragade ... vs Shrawan S/O Sambhaji Katkar And ... on 26 August, 2021
Bench: S. M. Modak
3sa 357.2018. 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 357/2018
Ghanshyam Budhaji Khobragade and others Versus Shrawan Sambhaji Katkar and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri A.H. Lohiya, Advocate for Appellants.
Shri M. Anilkumar, Advocate for Respondent No. 1.
Shri Raja Dandwate, Adv. h/f Shri M.P. Khajanchi, Adv. for respondent Nos.2 and 3.
CORAM : S.M. MODAK, J.
DATE : 26/08/2021
Heard Shri A.H. Lohiya, learned advocate for the
appellants/subsequent purchasers, Shri M. Anilkumar, learned
advocate for respondent No.1/original plaintiff and learned Shri
Raja Dandwate, Adv. h/f Shri M.P. Khajanchi, Advocate for
respondent Nos. 2 and 3/original defendant Nos. 1 and 2.
2. Learned Advocate Shri M.P. Khajanchi has already
submitted his argument on the last date.
3. While issuing notice on 30/10/2018, this Court has
already framed following substantial question of law :
"Whether the appellate Court has rightly appreciated
the evidence while coming to the conclusion that the
plaintiff had proved his readiness and willingness to
perform his part of the contract ?"
4. Learned advocate Shri M. Anilkumar, though
3sa 357.2018. 2/4
submitted that present appellant being subsequent purchaser
cannot take a plea about non-proof of readiness and willingness
on the part of plaintiff. He also relied upon various judgments
filed as per the Pursis. The Hon'ble Supreme Court in various
judgments have dealt with the issue of joining the subsequent
purchaser as a party, the effect of the subsequent sale-deed
executed during the pendency of litigation, Plaintiff to ask for
declaration of that subsequent sale-deed as illegal and void.
5. Whereas according to learned Advocate Shri A.H.
Lohiya, observations in those judgments in fact, support the
grievance of the appellant. He has submitted that even the
subsequent purchaser can take up a plea, which is available to the
vendors. He emphasised that burden to prove requirements of
Section 16 of the Specific Relief Act is on the plaintiff and as such
subsequent purchaser can take up that plea.
Whereas according to the learned Advocate Shri M.
Anilkumar, the subsequent sale-deed was executed in spite of the
fact that his client had given a notice of lis pendens to the
concerned Office of Sub Registrar. According to him, as per the
provisions of Section 19 (b) of the Specific Relief Act, the
protection is not available to subsequent purchaser who has
purchased it with the notice of the litigation.
6. He submitted that considering the execution of sale-
deed by the appellant having full knowledge of the pendency of
the litigation, the Second Appeal needs to be considered on
3sa 357.2018. 3/4
priority basis. He submitted that the appeal be decided on the
basis of the available record. He also submitted that in fact, the
appellant has no case in order to disprove readiness and
willingness on the part of the plaintiff.
7. According to the learned Advocate Shri A.H. Lohiya, the
appeal needs to be admitted and then it can be heard on the
priority basis. According to him, the procedure about filing of
private paper book needs to be complied with and in that
eventuality is ready for final argument at the earliest.
8. Learned Advocate Shri M.P. Khajanchi, also submitted
that the decree passed by the First Appellate Court is defective in
the sense that there is no direction to the appellants/subsequent
purchasers to hand over the possession to the plaintiff.
9. In view of the above submissions, this Court feels it
necessary to admit the Second Appeal on the substantial question
of law which is already framed on 30/10/2018. The appellant
has already filed certain documents / evidence as per the index.
10. Shri M. Anilkumar, learned Advocate waives notice for
respondent No.1.
11. Shri M.P. Khajanchi, learned Advocate waives notice for
respondent Nos. 2 and 3.
12. The record and proceedings is already received. The
3sa 357.2018. 4/4
respondent No.1 is at liberty to file the remaining documents in
this Court. It be done within ten days and then appeal be fixed
for final hearing in the last week of September-2021.
13. The filing of private paper book is dispensed with.
Civil Application (CAS) No. 856/2018
1. This Court has already stayed the execution of the
decree passed by the First Appellate Court. The effect of that
order is continued for the period of three months or earlier, if the
Second Appeal is disposed of.
2. The appellant is directed not to create third party
interest and not to change the nature of the property including
making any constructions on the suit land, until further orders.
3. Civil Application is disposed of.
JUDGE
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