Sandip Dattatraya Wakale And ... vs Kantabai Eknath Wagh And Other
2022 Latest Caselaw 2152 Bom

                                    .. 1 ..                         SA.235.2019


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                     927 SECOND APPEAL NO.235 OF 2019

Sandip Dattatraya Wakale and Others                             .. Appellants

         Versus

Sau. Kantabai Eknath Wagh and Others                          .. Respondents
                               ...
Mr. V.D. Sapkal, Senior Counsel i/b. Mr. Shriraj R. Wakale, Advocate
for Appellants
Mr. M.R. Sonawane, Advocate for Respondent Nos.1 and 2
Mr. N.B. Narwade, Advocate for Respondent No.5-B
                                 ...

                                     WITH

                        CA/6390/2019 IN SA/235/2019
                      WITH CA/5152/2019 IN SA/235/2019
                                    ...

                                    CORAM :    MANGESH S. PATIL, J.

                                    Reserved on         :     01-03-2022
                                    Pronounced on       :     02-03-2022

PER COURT :

.                 Heard the learned advocates for both the sides on the

point of admission.

2. The respondents are the original plaintiffs, who filed a

suit seeking a declaration that the agreement of sale executed by

them in favour of the appellants and the Power of Attorney executed

by original plaintiff no.5 - Dashrath in favour of the appellants were

not to be acted upon and be declared void. Apparently, it was a suit

.. 2 .. SA.235.2019

under Section 31 of the Specific Relief Act whereby they were seeking

to cancel the instrument being void or voidable.

3. The appellants contested the suit and asserted that the

respondents - plaintiffs had agreed to sell the suit property by

receiving earnest money and the transaction was witnessed by the

agreement of sale which was duly registered.

4. The trial court dismissed the suit. By the judgment and

order under challenge, the appellate court has reversed the decision

and has decreed the suit.

5. The inconsistent conclusions of the courts below would

give rise to substantial questions of law. The Second Appeal stands

admitted on following substantial questions of law:

(a) Whether the lower appellate court was justified in reversing the judgment and order of the trial court ignoring the relevant and material facts and circumstances ?

(b) Whether the lower appellate court without there being sufficient and cogent evidence was justified in allowing the respondents to take exception to registered agreement of sale ?

                                        .. 3 ..                           SA.235.2019




              (c)          Whether the lower appellate court has grossly

erred in recording the conclusion that the suit was within limitation when the relief of declaration was being claimed after six years of execution of the agreement of sale and the Power of Attorney?

6. Taking into account the nature of the dispute, both the

sides are restrained from creating any third party interest in the suit

property till decision of the Second Appeal.

7. Civil Application Nos.6390 of 2019 and 5152 of 2019

are disposed of.

( MANGESH S. PATIL ) JUDGE ...

Gajanan