Hasan Amir Raje vs Eknath Dagadu Bhagat And Ors
2025 Latest Caselaw 3649 Bom

Bombay High Court

Hasan Amir Raje vs Eknath Dagadu Bhagat And Ors on 19 August, 2025

2025:BHC-AUG:22810




                                                 1                         ca 3066.25

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                            CIVIL APPLICATION NO. 3066 OF 2025
                                           IN
                          SECOND APPEAL STAMP NO. 7857 OF 2025

                        Hasan Amir Raje                          .. Applicant

                             Versus

                        Eknath Dagadu Bhagat and others          ..   Respondents

                 Shri G. R. Syed, Advocate for the Applicant.
                 Shri S. D. Kotkar, Advocate for the Respondent No. 1.
                 Shri D. R. Markad, Advocate for the Respondent Nos. 2 to 4.

                                   CORAM : SHAILESH P. BRAHME, J.

DATE : 19TH AUGUST, 2025.

FINAL ORDER :

. Heard both sides.

2. Applicant is seeking leave to file second appeal challenging judgment and decree dated 18.09.2018 passed by the learned District Judge - 1, Ahmednagar in R.C.A. No. 21 of 2018. Applicant was not party to R.C.S. No. 321 of 2016, which gave rise to aforesaid regular civil appeal and thereafter Second Appeal No. 853 of 2018.

3. The grievance of the applicant is that parties to the second appeal acted in collusion and appeal was withdrawn on 22.09.2022, meaning thereby the decree of specific performance 2 ca 3066.25

of contract passed by the Appellate Court in R.C.A. No. 21 of 2018 stood confirmed, which is causing prejudice to the applicant.

4. The respondent No. 2 to 4 are the owners of land gut No. 383 situated at Shendi, Tq. Ahmednagar. They had agreed to sell the suit land to the respondent No. 1 vide agreement dated 15.10.1994. R.C.S. No. 321 of 2016 was filed by the respondent Nos. 2 to 4 for specific performance of contract. The suit was contested and it was dismissed on merits vide judgment and decree dated 10.11.2017. Being aggrieved R.C.A. No. 21 of 2018 was preferred by the respondent Nos. 2 to 4 and they succeeded in securing decree of specific performance of contract. Against that the respondent No. 1 had preferred Second Appeal No. 853 of 2018.

5. Second appeal was admitted on 26.10.2018 by formulating substantial question of law. Thereafter it was withdrawn by the then appellant on 22.09.2022. On 21.09.2022 the respondent Nos. 2 to 4 executed sale deed to the respondent No. 1 and it was registered on 22.09.2022.

6. Applicant claims to have been entered into agreement to sale with the respondent Nos. 2 to 4, owners vide unregistered document dated 22.11.2016. On that basis he filed Spl. C. S. No. 84 of 2023 for specific performance of contract in respect of self same subject matter. The suit is pending.

3 ca 3066.25

7. Learned counsel Mr. G. R. Syed for the applicant submits that application for temporary injunction filed in Spl. C. S. No. 84 of 2023 was rejected and it was further confirmed by the Appellate Court. Being aggrieved Writ Petition No. 1825 of 2023 was filed and High Court also refused to interfere in the order. The observations in para Nos. 8 and 9 of the order of the learned Single Judge rejecting the writ petition promoted the applicant to approach this Court by filing this application. It is submitted that even if applicant succeeds in his suit, he will not get title and possession of the suit land due to judgment and decree dated 18.09.2018. It is submitted that the respondents are acting in collusion and the applicant has better right to the suit land. My attention is adverted to the revenue record disclosing applicant's name as purchaser.

8. Learned counsel would submit that agreement dated 15.10.1994 was false and bogus and earlier suit for specific performance of contract filed by the respondent Nos. 2 to 4 was barred by time. Respondents suppressed material facts in respect of transaction of original owner with the present applicant. It is further contended that applicant needs to be permitted to prosecute second appeal which will facilitate transposition of the parties.

9. Per contra, learned advocate Mr. Kotkar for the respondent No. 1 submits that the applicant is not concerned with the 4 ca 3066.25

transaction between respondent No. 1 and the respondent Nos. 2 to 4. No right is created in the appellant even if it is presumed that agreement is executed on 22.11.2016. It is submitted that applicant has already resorted to suit and, therefore, there is no need to grant leave. It is further submitted that applicant did not intervene when earlier suit was pending before the Trial Court or the Appellate Court.

10. I have considered rival submissions of the parties. The agreement executed by the respondent Nos. 2 to 4 in favour of the respondent No. 1 on 15.10.1994 is prior in time. Applicant was not concerned with the said transaction in any manner. There was no privity of contract between the applicant and the original owner. For performance of contractual obligations R.C.S. No. 321 of 2016 was filed and carried upto High Court. Applicant could have intervened in the suit when it was pending either before the Trial Court or the Appellate Court. No steps were taken, hence present application is untenable.

11. The applicant cannot make any grievance in respect of withdrawal of second appeal at the instance of the respondent No. 1. It was contest between the respondent No. 1 on one hand and the respondent Nos. 2 to 4 on the other hand. I find no merit in the submission that there was collusion resulting into withdrawal of second appeal.

12. I have gone through the revenue record which is at Exhibit 5 ca 3066.25

A-2 to A-3 of the application. The unregistered agreement dated 22.11.2016 is subsequent in time. It does not create any right or interest in the applicant. It only enables applicant to file suit for specific performance of contract, which has already been done by filing Spl.C.S. No. 84 of 2023.

13. I have gone through the observations of the learned Single Judge made in the order dated 28.02.2025 in Writ Petition No. 1825 of 2024. In Spl. C. S. No. 84 of 2023, no declaration is solicited in respect of decree passed on 18.09.2018 in R.C.A. No. 21 of 2018 or sale deed executed on 21.09.2022. Filing of the present application cannot be the remedy for the applicant to overcome impediment of sale deed dated 21.09.2022.

14. Applicant was not party before the trial Court as well as Appellate Court in R.C.S. No. 321 of 2016. He cannot be permitted to prosecute Second Appeal No. 853 of 2018, which was already withdrawn. It would be open for the applicant to take necessary steps as permissible in law for challenging decree of specific performance of contract passed in favour of the respondent No. 1.

15. Mr. G. R. Syed, learned counsel for the applicant relies on the judgment of the Supreme Court in the matter of R. Rathinavel Chettiar Vs. V. Sivaraman reported in (1999) 4 SCC 89. It was in respect of withdrawal of the suit at the appellate stage. It is distinguishable on facts. In the case at hand I am considering 6 ca 3066.25

application for leave to file appeal.

16. Further reliance is placed on the judgment of the Supreme Court in the matter of My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and others reported in 2022 SC Online SC 1063. It pertains to power of the Court U/Sec. 151 of the C. P. C. In the case at hand applicant has already filed a suit against owners of the property. The facts are distinguishable and this judgment is also of no avail to him.

17. Mr. Kotkar, learned counsel for the respondent No. 1 has relied upon the judgment dated 16.01.2015 of the Division Bench of the Gujrat High Court in the matter of Nayankumar Bhagvanbhai Patel Mevda Vs. Ashokbhai Chhotabhai Patel and others in Civil Application (For leave to Appeal) No. 3285 of 2024 in First Appeal No. 16173 of 2024 to buttress that agreement to sale does not create any interest or charge on the property. The proposition is undisputed. In the present case also it has been held that the applicant does not get any right or interest in the suit land on the basis of unregistered agreement.

18. For the reasons stated above, I find no merit in the application. It stands rejected.

[ SHAILESH P. BRAHME J. ]

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