Bombay High Court
Dashrath Gangaram Bhange (Dead) ... vs Umesh S/O Radhyeshyam Sharma on 17 November, 2025
2025:BHC-NAG:12225
SA 751 of 2017 - Judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.751/2017
APPELLANT : Umesh S/o Radheshyam Sharma
Aged about - 47 years, Occupation - Business,
R/o Post Office Road, Gokulpeth Road,
Nagpur.
(Original Plaintiff)
...VERSUS...
RESPONDENTS : 1. Dashrath S/o Gangaram Bhange,
(Deceased through legal heirs)
(Original Defendant No.1)
1(a). Gayabai Wd/o of Dashrath Bhange,
Aged about - 79 years, Occupation -
Household.
1(b). Mahadeo S/o Dashrath Bhange,
Aged about 49 years, Occupation - Service.
1(c). Deorao S/o Dashrath Bhange,
Aged about 44 years, Occupation - Business.
1(d). Sau. Satyabhamabai S/o Dnyaneshwar
Nagpure, Aged about 55 years, Occupation-
Household.
1(e). Sau. Tulsabai W/o Raju Nagpure,
Aged - 53 years, Occupation- Household,
R/o - Village Navegaon Bandh, Taluka-
Parshioni, District - Nagpur.
1(f). Sau. Maya W/o Vijay Dayre,
Aged about - 51 years, Occupation -
Household, R/o - Village Navegaon Bandh
Taluka - Parshioni, District - Nagpur.
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2
1(g). Sau. Chhaya W/o Vishnu Kelwade,
Aged - 49 years, Occupation -
Household, R/o - Village Suradevi,
Taluka - Kamptee, District - Nagpur.
2. Shri Shyamrao S/o Gangaram Bhange,
Aged about - 72 years, Occupation -
Agriculturist, R/o Village Raipur, Taluka-
Hingna, District, Nagpur.
...VERSUS...
RESPONDENT : Umesh S/o Radheshyam Sharma
Aged about - 47 years, Occupation - Business,
R/o Post Office Road, Gokulpeth Road,
Nagpur.
----------------------------------------------------------------------------------------------
Mr. M.G. Bhangde, Sr. Advocate a/w Mr. Adarsh G. Baheti, Advocate for appellants
Mr. M.R. Joharapurkar, Advocate for respondent
----------------------------------------------------------------------------------------------
WITH
SECOND APPEAL NO.127/2018
APPELLANTS : Dashrath S/o Gangaram Bhange,
(Dead) through L.Rs.
1. Gayabai Wd/o of Dashrath Bhange,
Aged about - 80 years, Occupation -
Household.
2. Mahadeo S/o Dashrath Bhange,
Aged about 49 years, Occupation - Service.
3. Deorao S/o Dashrath Bhange,
Aged about 46 years, Occupation - Business.
4. Sau. Satyabhamabai S/o Dnyaneshwar
Nagpure, Aged about 56 years, Occupation-
Household.
SA 751 of 2017 - Judgment.odt
3
Nos.1 to 4 R/o Hingna, Tq. Hingna,
Distt. Nagpur.
5. Sau. Tulsabai W/o Raju Nagpure,
Aged - 54 years, Occupation- Household,
R/o - Village Bhugaon, Tq. Kamptee,
Distt. Nagpur.
6. Sau. Maya W/o Vijay Dayre,
Aged about - 52 years, Occupation -
Household, R/o - Village Navegaon Bandh
Taluka - Parseoni, District - Nagpur.
7. Sau. Chhaya W/o Vishnu Kelwade,
Aged - 50 years, Occupation -
Housewife, R/o - Village Suradevi,
Taluka - Kamptee, District - Nagpur.
(Deft.No.2 on RA) 8. Shri Shyamrao S/o Gangaram Bhange,
Aged about - 73 years, Occupation -
Agriculturist, R/o Village Raipur, Taluka-
Hingna, District, Nagpur.
...VERSUS...
RESPONDENT : Umesh S/o Radheshyam Sharma
(Plaintiff on RA) Aged about - 47 years, Occupation - Business,
R/o Post Office Road, Gokulpeth Road,
Nagpur.
----------------------------------------------------------------------------------------------
Mr. M.R. Joharapurkar, Advocate for appellants
Mr. M.G. Bhangde, Sr. Advocate a/w Mr. Adarsh G. Baheti, Advocate for respondent
----------------------------------------------------------------------------------------------
CORAM : ROHIT W. JOSHI, J.
Date of reserving the judgment : 15/10/2025
Date of pronouncing the judgment : 17/11/2025
SA 751 of 2017 - Judgment.odt
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JUDGMENT:
1. Present Second Appeal No.127/2018 came to be admitted
vide order dated 24/07/2018 on the following substantial question of
law :-
Whether the Courts have rightly exercised discretion
while passing the decree for specific performance ?
2. Second Appeal No.751/2017 came to be admitted vide
order dated 11/09/2018 on the following substantial question of law :-
The first Appellate court having found that defendants
were in possession of 1 hectare 24 R land, whether the plaintiff
could have been directed to have the sale-deed executed with
regard to land admeasuring 1 Hectare 69 R land ?
3. Both these appeals arise out of the same civil suit. The
appellants in Second Appeal No.127/2018 are the original defendants
and appellant in Second Appeal No.751/2017 is the original plaintiff.
The parties will be referred to as "plaintiff and defendants" in the
present judgment. The plaintiff and defendants had entered into
agreement of sale dated 01/02/2006 with respect to the suit property
which is an agricultural land admeasuring 1.69 HR. The sale
consideration was fixed at Rs.14,00,000/- per acre. As per the
agreement the entire sale consideration was to be determined based on
actual area of the suit property as would be determined upon
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measurement of the suit property. The deal was finalized between the
parties on 10/01/2006. The plaintiff had paid a sum of Rs.1100/- to the
defendants on the said date. The plaintiff has paid amount of
Rs.14,00,000/- to the defendants on 01/02/2006 i.e. on the date of
execution of agreement. The agreement states that second installment
of Rs.14,00,000/- was payable on or before 30/04/2006 and the
balance sale consideration was payable on the date of execution and
registration of the sale-deed which was to be done on or before
31/10/2006. The agreement also states that the defendants shall get the
measurement of suit property done from the appropriate Government
authority within a period of 30 days from the date of execution of
agreement and shall also get the boundaries of the suit land determined
accordingly within the said period.
4. The plaintiff had issued notice dated 24/04/2006 to the
defendants stating that the defendants had failed to discharge their
obligation of getting the suit property measured from the office of Tahsil
Inspector of land records and to get the boundaries fixed as per the
agreement. The plaintiff further stated that he was ready and willing to
make payment of second installment of Rs.14,00,000/- to the
defendants. It is stated in the notice that the defendants should get the
measurement done and boundaries fixed in terms of the agreement and
collect amount of Rs.14,00,000/- from the plaintiff. The notice further
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records that in the event the needful is not done by the defendants, the
plaintiff will not be bound to make payment of second installment of
Rs.14,00,000/- on or before 30/04/2006 and that payment of second
installment will be deferred. The said notice was not replied by the
defendants. The parties are at contention as to whether the said notice
was served on the defendants or not.
5. Thereafter, the plaintiff issued another legal notice dated
07/07/2006 reiterating the stand that the defendants had failed to get
the land measured and boundaries fixed as per the agreement. It is
stated in the notice that although the plaintiff was ready with the
amount for making payment of second installment, the defendants did
not turn up with the relevant documents of measurement, area
correction and fixation of boundaries.
6. The defendants issued reply to the legal notice dated
07/07/2006 issued by the plaintiff. It is stated in the reply-notice that
the land was got measured from the appropriate Government
department on 23/03/2006. The defendants stated that the payment of
second installment was not to be made after the measurement of land
or fixation of boundaries and that the plaintiff had committed breach of
agreement by not making payment of second installment of
Rs.14,00,000/- on or before 30/04/2006. The defendants also stated
that the plaintiff was aware about the fact that the measurement of land
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was already done and yet he was raising issue with respect to the same.
It will be pertinent to state that the plaintiff had also issued two
telegrams dated 28/07/2006 to the defendants regarding measurement
of land and fixation of boundaries.
7. In this backdrop of facts, the plaintiff filed suit for specific
performance of contract being Special Civil Suit No.755/2006. The suit
was filed on 09/08/2006. The defendants opposed the suit contending
that plaintiff had committed breach of agreement by not making
payment of second installment within the stipulated period. The
defendants also contended that measurement map was provided to the
plaintiff after the measurement was carried out in March, 2006.
8. Based on rival pleadings, issues were framed in the matter.
The learned trial Court has recorded that the defendants were under
obligation to get the measurement of suit property done from
appropriate Government authority and to fix the boundaries of the suit
property within a period of 30 days as per the agreement. The learned
trial Court by referring to the legal notices dated 24/04/2006 and
07/07/2006, certificate issued by Banker and the plaintiff's affidavit
dated 13/07/2006 regarding his presence in the office of concerned Sub
Registrar has held that the plaintiff was all the while ready and willing
to perform his part of the contract. As regards the measurement, the
learned trial Court has observed that there was divergence in the area of
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the suit property as per revenue record and area available at the spot
and that the defendants had failed to get the record corrected till the
date of cross-examination of defendant No.1 who entered the witness
box on their behalf. The learned trial Court has found that as against
1.69 HR land, the defendants were in possession of land to the extent of
1.25 HR only and further that this 1.25 HR land included certain
encroachment by the defendants over other adjoining lands. The
learned trial Court found that the defendants were in breach of the
agreement on account of failure of their part to get the boundaries fixed
in terms of the agreement. In view of such findings, the learned trial
Court decreed the suit for specific performance of contract.
9. Aggrieved by the aforesaid decree for specific performance,
the defendants preferred First Appeal No.476/2012 challenging the said
decree. In view of enhancement of pecuniary jurisdiction of the learned
District Court, the appeal was sent to the learned District Court, Nagpur
and was re-registered as Regular Civil Appeal No.201/2016. The
learned first Appellate Court has dismissed the appeal vide judgment
and decree dated 13/10/2017.
10. The learned first Appellate Court has recorded a finding
that the defendants had got the land measured on 23/03/2006 i.e.
before 30/03/2006 and that the said fact was within the knowledge of
the plaintiff. It is, however, observed that although this measurement
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was done the necessary correction with respect to difference in area was
not done. The learned first Appellate Court has also referred to evidence
of the Surveyor (D.W.2) to record a finding that the defendants were in
possession of 1.25 HR land only and further that part of this 1.25 HR
land it was in some other survey number.
11. The learned first Appellate Court has held in paragraph 16
of the judgment that the plaintiff intended to fix the price only with
respect to the area of suit property actually in physical possession of the
defendants and the defendants were insisting for fixation of sale
consideration, as per the entire area of suit property as recorded in 7/12
extract. The learned first Appellate Court recorded a finding that the
agreement did not contemplate that the property to be sold was the
property in actual physical possession of the defendants. Further finding
is recorded that the measurement map at Exhibit-87 indicated that the
entire area was available at the spot. Thereafter, in paragraph 17, the
learned first Appellate Court has recorded that there was some
ambiguity with respect to interpretation of the agreement and that the
plaintiff had misinterpreted the agreement bona fide to mean that the
agreement was only in relation to land in possession of the defendants.
In view of such observation, it is held that the plaintiff was ready and
willing to perform his part of contract and that the misinterpretation of
agreement did not create any doubt as regards his readiness and
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willingness. Having held so, the learned first Appellate Court has held in
paragraph 20 of the judgment that the condition of measurement and
correction was a precondition for making payment of second installment
of sale consideration. The learned trial Court has also referred to the
judgment of the Hon'ble Supreme Court in the matter of Chand Rani Vs.
Kamal Rani, reported in (1993) 1 SCC 519 and has extracted the said
portion from the judgment, which reads as under :-
"In determining the question whether time is the
essence of the contract, with reference to the performance of
a contract, what generally may arise for consideration either
with reference to the contract as a whole or with reference to
a particular term or condition of the contract which is
breached. In a contract relating to sale of immovable property
if time is specified for payment of the sale price but not in
regard to the execution of the sale deed, time will become the
essence only with reference to payment of sale price but not
in regard to execution of the sale deed. Normally in regard to
contracts relating to sale of immovable properties, time is not
considered to be essence of the contract unless such an
intention can be gathered either from the express terms of the
contract or impliedly form the intention of the parties as
expressed by the terms of the contract.
The intention to make time stipulated for payment of
balance consideration will be considered to be essence of the
contract where such intention is evident from the express
terms or the circumstances necessitating the sale, set out in
the agreement. If, for example, the vendor discloses in the
agreement of sale, the reason for the sale and the reason for
SA 751 of 2017 - Judgment.odt
stipulating that time prescribed for payment to be the essence
of the contract, that is, say, need to repay a particular loan
before a particular date, or to meet an urgent time bound
need (say medical or educational expenses of a family
member) time stipulated for payment will be considered to be
the essence. Even if the urgent need for the money within the
specified time is not set out, if the words used clearly show an
intention of the parties to make time the essence of contract,
with reference to payment, time will be held to be the essence
of the contract."
Having considered the said judgment, the learned first
Appellate Court has recorded that time was not essence of the contract
between the parties.
12. Mr. M.R. Joharapurkar, learned Advocate for the
defendants argues that the plaintiff has committed breach of the
contract by not making payment of second installment within the
prescribed period. He further states that the plaintiff was aware about
the measurement of the suit property which was got measured by the
defendants through the appropriate Government authority and yet the
plaintiff feigned ignorance with respect to the same. He further
contends that although the defendants were not in possession of the
entire suit property, the agreement did not contemplate that land in
physical possession of the defendants was only to be sold. Learned
Advocate contends that both the learned Courts erred in exercising
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discretion in favour of the plaintiff although he has committed breach of
agreement and has also come up with incorrect stand with respect to
measurement of land. He further contends that the stipulation regarding
payment of second installment is independent of the obligation of
defendants to get the land measured.
13. Per contra, Mr. M.G. Bhangde, learned Senior Advocate for
the plaintiff contends that both the learned Courts have recorded a
categorical finding of fact that the plaintiff was always ready and willing
to perform his part of the contract. He contends that the plaintiff had
examined the bank witness to establish his financial capability to
discharge his financial obligation under the contract. The learned Senior
Advocate submits that discretion exercised by both the learned Courts
on appreciation of evidence does not warrant interference at the hands
of this Court while entertaining the second appeal. With respect to
contention of Mr. Joharapurkar that the plaintiff was present at the time
of measurement and was aware about the same, Mr. Bhangde, learned
Senior Advocate draws attention to cross-examination of D.W. 2-
Surveyor wherein he has stated that the presence of plaintiff was shown
in the measurement map since one of the persons present at the spot
introduced himself as the plaintiff. He also draws attention to the cross-
examination to point out that the plaint bears signature of plaintiff in
English whereas, the map bears alleged signature of plaintiff in Marathi.
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Attention is also drawn to the signature of the plaintiff on the
agreement, which is also in English. As regards the substantial question
of law, the learned Senior Advocate draws attention to Section 20 of the
Specific Relief Act, 1963 and argues that the substantial question of law
needs to be answered in the light of the said provision only and that this
Court has not admitted the appeal on the point of readiness and
willingness which is covered under Section 16 of the Specific Relief Act.
14. The contention of the learned Senior Advocate for the
plaintiff that the substantial question of law needs to be answered only
with reference to Section 20 of the Specific Relief Act, 1963 cannot be
accepted, in view of judgment of the Hon'ble Supreme Court in the
matter of Parswanath Saha Vs. Bandhana Modak (Das) and another ,
reported in 2024 SCC OnLine SC 3834. The Hon'ble Supreme Court has
categorically held that Section 20 is not exhaustive of the situations in
which discretionary relief of specific performance cannot be granted. It
is stated that the said provision only indicates the situations in which
the Court may exercise discretion not to grant specific performance. In
the matter of Janardan Das and others Vs. Durga Prasad Agarwalla and
others, reported in 2024 SCC OnLine SC 2937, the Hon'ble Supreme
Court has held that since specific performance of contract is a
discretionary relief, the plaintiff must establish sincerity and earnestness
in fulfilling his contractual obligations. The judgment clearly implies
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that grant of discretionary relief of specific performance also depends on
proof of readiness and willingness.
15. The dispute between the parties appears to be with respect
to schedule of payment incorporated in page 2 of the agreement and
obligation of the defendants to get the land measured and boundaries
fixed. As per the agreement, second installment of Rs.14,00,000/- was
payable on or before 30/04/2006. The agreement also states that the
balance sale consideration was payable by the plaintiff on or before
31/10/2006. As against this, the agreement also provides that the
defendants were to get the suit property measured from the appropriate
Government authority and get the boundaries fixed within a period of
30 days from the date of execution of agreement. The said clause
further provides that the total sale consideration was to be determined
based on the said measurement. It is also provided that in case any
disparity or discrepancy is found upon measurement of the suit property
the defendants will get it corrected at their expenses. It must also be
stated that time frame of 30 days is stipulated only for measurement of
the land and fixation of boundaries and not for setting right discrepancy
or disparity, if any, to be noticed on such measurement being carried
out.
16. It is the case of the defendants that the plaintiff has
committed breach of the agreement by not making payment of
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installment before 30/04/2006. As against this, the case of the plaintiff
is that the stipulation for payment of installment is co-related to the
stipulation for measurement of land, fixation of boundaries and
correcting disparity, if any.
17. It is the case of the plaintiff that the defendants did not
carry out measurement of the suit property or fixation of boundaries
thereof and also did not provide copy of measurement map to him. As
against this, the case of the defendants is that copy of measurement
map was provided to the plaintiff and that the boundaries of the suit
property were fixed within the stipulated period of 30 days on
measurement being carried out. The defendants contend that the
measurement was carried out on 22/03/2006 well within the stipulated
period of 30 days. They have placed relevant measurement map at
Exh.87. The said map is proved during the course of evidence of the
Cadastral Surveyor (D.W.-2), who had carried out the measurement.
18. As stated above, the learned trial Court passed decree for
specific performance of contract. The learned first Appellate Court
maintained the decree for specific performance of contract. However,
the learned first Appellate Court has held that the agreement was
pertaining to sale consideration for the entire land admeasuring 1.69
HR. In this context, it will be necessary to state that although the
learned trial Court has passed decree for specific performance of
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contract, it has directed that the measurement of suit property be
carried out as per the agreement and sale consideration be determined
as per the measurement and the same be paid by the plaintiff to the
defendants. As against this, the learned first Appellate Court has held
that the agreement in question is pertaining to the entire 1.69 HR land
and has directed the plaintiff to pay the said amount to the defendants.
19. In this regard, it needs to be stated that perusal of the
measurement report at Exh.87 will demonstrate that the entire 1.69 HR
land is available at the spot. However, the land in possession of the
defendants is only to the extent of 1.25 HR. There is encroachment over
the suit property from eastern and western side. Likewise, entire 1.25
HR land in possession of the defendants is not over the suit property
only. This 1.25 HR land in possession of the defendants also includes
encroachment over the land adjoining the suit property towards
southern boundary.
20. In this context, the learned first Appellate Court has
observed that the dispute between the parties was as to whether the
sale consideration was to be determined based on the actual area of the
suit property which is available at the spot or actual area of the suit
property in possession of the defendants. The learned first Appellate
Court has recorded that the plaintiff intended to make payment of sale
consideration only with respect to the area of the suit property in
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possession of the defendants. The said observation appears to be
correct, inasmuch as the plaintiff has filed second appeal challenging
the judgment and decree by the learned first Appellate Court to the
extent it directs payment of sale consideration for entire 1.69 HR land
although the entire land is not in possession of the defendants. The
contention of the defendants is that the sale consideration was payable
for the entire land although the entire land is not in their possession.
21. The learned first Appellate Court accepted the contention
of the defendants that the sale consideration was payable for the entire
area irrespective of land in possession of the defendants.
22. In this context, the learned first Appellate Court should
have decided as to whether the plaintiff was willing to perform his part
of the contract, inasmuch as he has shown disinclination to make
payment for portion of suit property, which was not in possession of the
defendants. However, the learned first Appellate Court has observed
that the language of the agreement was ambiguous and was susceptible
to different interpretations and that insistence of the plaintiff to make
payment for the suit property excluding the area thereof which was not
in possession of the defendants was based on a bona fide interpretation
of the agreement.
23. As regards the contention between the parties with respect
to breach on the part of the plaintiff to make payment of second
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installment of Rs.14,00,000/- on or before 30/04/2006, the defendants
had placed reliance on the judgment of the Hon'ble Supreme Court in
the matter of Saradamani Kandappan Vs. S. Rajalakshmi and others,
reported in (2011) 12 SCC 18 and Chand Rani (Smt) (Dead) By Lrs. Vs.
Kamal Rani (Smt) (Dead) by Lrs. reported in (1993) 1 SCC 519. The
said judgments are referred by the learned first Appellate Court. The
learned first Appellate Court has quoted relevant extract from the
judgment in the matter of Chand Rani. In the said judgment, the
Hon'ble Supreme Court has held that a time is fixed in agreement of
sale for payment of sale consideration only and the agreement is open
ended with respect to date for execution of sale-deed, time will be the
essence only with respect to stipulation for payment and not for
execution of the sale-deed. It is further held that if the words used in
the agreement clearly show an intention to make time for payment
essence of contract, the said condition will have to be honoured. It is
further elaborated that in certain cases the agreement may disclose
some pressing urgency for the vendor, such as medical emergency, need
for repayment of loan etc. which would imply that the stipulation for
payment will be the essence of contract. However, it is again clarified
that even in the absence of any such urgent need, time can be
considered to be essence of contact, if the agreement so specifies.
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24. Perusal of the judgment by the learned first Appellate Court
will demonstrate that the argument of the defendants that stipulation
for payment was essence of contract is discarded on the ground that the
defendants did not plead or prove any immediate urgency so as to
consider the schedule for payment to be essence of contract. I am afraid
the learned first Appellate Court has misinterpreted the judgment of the
Hon'ble Supreme Court, which clearly lays down that even in the
absence of any such urgency, time-frame regarding payment can be
essence of contract. Likewise, the learned first Appellate Court has also
observed that measurement of the suit property and correction of area
was a precondition for making payment of second installment. This
observation is made in paragraph 20 of the judgment. However, in
paragraph 16 of the judgment, the learned first Appellate Court has
recorded a categorical finding that there was no difference in the area
shown in the revenue record and the area that was found at the spot at
the time of measurement as per Exhibit-87. The learned first Appellate
Court has also recorded a finding in paragraph 12 of the judgment that
the defendants had got the land measured before stipulated date i.e.
30/03/2006 and that the said fact was known to the plaintiff. The
findings recorded in paragraph 12 and 16 of the judgment will indicate
that according to the learned first Appellate Court, the plaintiff was
aware about the fact that the defendants have got the suit property
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measured from the appropriate Government Department and that there
was no difference in the area of suit property as mentioned in 7/12
extract and the area found at the spot. In view of such finding, the
learned first Appellate court should not have recorded in paragraph 20
that the payment of second installment of Rs.14,00,000/- was subject to
condition of measurement of suit property and area correction thereof
and therefore, failure to make payment before 30/04/2006 would not
give rise to inference of breach of agreement on the part of the plaintiff
or failure to establish readiness and willingness.
25. It needs to be mentioned that the period of 30 days is
prescribed only for the purpose of getting the land measured and its
boundaries fixed. The period of 30 days is not prescribed for getting the
area correction with respect to disparity and discrepancy. The learned
first Appellate Court has erred in holding that the correction of
measurement was also to be done within a period of 30 days.
26. Thus, there is some contradiction with respect to findings
recorded by the learned first Appellate Court on the aspect of obligation
of the defendants to get the suit property measured and boundaries
fixed and obligation of the plaintiff to make payment of sale
consideration as per the schedule of payment mentioned in the
agreement. The discretion exercised on the basis of such findings
therefore cannot be sustained. Apart from this, the learned first
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Appellate Court has also not property considered and applied the ratio
of judgments in the matter of Saradamani and Chand Rani (supra).
27. One of the points, on which the parties are at contention, is
as to whether the plaintiff was aware about the measurement of the suit
property on 23/03/2006, as contended by the defendants. It is the case
of the plaintiff that he was not made aware about the said measurement
and that copy of the measurement map was also not provided to him.
The defendants contend that the plaintiff was aware about the
measurement that was carried out and was also provided copy of
measurement map. The learned first Appellate Court has accepted the
contention of the defendants and has held in paragraph 12 of the
judgment that during the course of cross-examination when question
with respect to his presence at the spot at the time of measurement was
put, the plaintiff did not deny the said suggestion. The learned first
Appellate Court observed that the plaintiff was very particular with
respect to the agreement and therefore, it was difficult to believe that he
had not attended the spot when the measurement was carried out at the
site. In this context, it must be stated that the measurement report
refers to presence of the plaintiff at the spot at the time of
measurement. However, cross-examination of D.W. -2 will demonstrate
that signature of plaintiff on the measurement report was appearing in
Marathi or Devnagari. All signatures of the plaintiff on record i.e. on the
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agreement, pleadings, Vakalatnama etc. are in English. It will be
pertinent to state that in the reply-notice issued on behalf of the
defendants, although it is stated that copy of measurement map was
provided to the plaintiff, they have not stated that plaintiff was present
on the spot while the measurement was carried out.
28. The learned first Appellate Court should take into
consideration these aspects of the matter as well while deciding the
appeal.
29. As regards Second Appeal No.751/2017 filed by the
plaintiff, the learned Senior Advocate made a motion at the
commencement of his submissions that he was not pressing the said
appeal. Second Appeal No.751/2017 is disposed of accordingly as
withdrawn.
30. For the reasons aforesaid, in the considered opinion of this
Court, the matter is required to be remanded to the learned first
Appellate court for deciding the appeal afresh. Second Appeal
No.127/2018 is partly allowed in the following terms :-
(i) The judgment and decree dated 13/10/2017 passed
by the learned District Judge-12, Nagpur in Regular Civil Appeal
No.201/2016 is quashed and set aside. The learned Appellate Court is
directed to decide the said appeal afresh without being influenced by
the findings recorded in the judgment dated 13/10/2017.
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(ii) The parties shall appear before the learned first
Appellate Court on 08/12/2025. The parties to note that separate notice
for appearance will not be issued.
(iii) Having regard to the fact that the dispute between
the parties is pending since the year 2006, when the civil suit was filed,
and the appeal was initially filed before this Court as First Appeal
No.476/2012, the learned first Appellate Court is requested to decide
the appeal as expeditiously as possible and in any case on or before
30/04/2026.
(ROHIT W. JOSHI, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 17/11/2025 18:22:05
