Shakil Allabaksh Shaikh And ... vs Ruksar Raju Shaikh
2022 Latest Caselaw 1537 Bom

                                      1                   928-sa-623-21 with ca.odt




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD


                  SECOND APPEAL NO. 623 OF 2021
                                WITH
                CIVIL APPLICATION NO. 14030 OF 2021


              SHAKIL ALLABAKSHA SHAIKH AND ANOTHER
                             VERSUS
                        RUKSAR RAJU SHAIKH
                                ...

             Advocate for Appellant : Mr. M. K. Bhosale
          Advocate for Respondent - sole :- Mr. V. P. Latange
                                ...

                                CORAM : MANGESH S. PATIL, J.

DATE : 15.02.2022

PER COURT :-

. I have heard the learned Advocates of both the sides at

the stage of admission and perused the papers.

2. The respondent is the owner of the suit property.

Asserting that she only permitted the appellant to dump his

articles in the suit property but subsequently he refused to

vacate it, in spite of a specifc demand raised by her by the

notice and he was bent upon to retain the possession, she fled

Regular Civil Suit No. 35/2012 for possession which was

dismissed with costs.

2 928-sa-623-21 with ca.odt

3. The appellant replied the suit notice asserting that she

had agreed to sell the suit property to him and had put him in

possession and pursuant to such agreement he had even

carried out construction by spending money. He also fled

Regular Civil Suit No. 101/2012 against her claiming specifc

performance of agreement of sale dated 19.11.2007.

4 The trial Court also decreed the appellant's suit for

specifc performance. Being aggrieved, the respondent

preferred composite appeal challenging the common judgment

and decree passed by the trial Court. By the judgment and

order under challenge the appellate Court has allowed the

Appeal, reversed the fndings of the trial Court, decreed the

respondent's suit for possession and dismissed that of the

appellant which was for specifc performance.

5. Having considered the reasoning given by the appellate

Court and also the trial Court and after perusal of the record

and after appreciating the rival submissions, the Second

Appeal is admitted on following substantial questions :-

(i) Whether the lower appellate Court referring to

the irrelevant circumstances has illegally reversed the

observations and the conclusions of the trial Court ?

                                     3                    928-sa-623-21 with ca.odt



         (ii)    Whether without there being any objection to

the admissibility of the agreement of sale, frstly on

the ground that it was insufciently stamped and

secondly, that it was not registered, the lower

appellate Court could have discarded the agreement

on both these counts ?

(iii) Whether the lower appellate Court grossly erred

in not taking note of the specifc pleadings in the suit

for specifc performance that the appellant was ever

ready and willing to perform his part of the contract ?

6. Since, admittedly, the appellant is in possession of the

suit property, the execution and operation of the judgment and

decree under challenge shall stand stayed till the decision of

the Second Appeal.

7. Civil Application No. 14030 of 2021 is disposed of.

( MANGESH S. PATIL ) JUDGE

shp/-