Bombay High Court
Lilabai Subhash Gopal vs Barsu Vithoba Varde Deceased Through ... on 9 October, 2025
2025:BHC-AUG:28300
1 SA.640-15 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.640 OF 2015
WITH
CIVIL APPLICATION NO. 14502 OF 2015
IN SA/640/2015
Lilabai Subhash Gopal,
Age 40 years, Occu. Agri.,
R/o Bohardi, Tq. Bhusawal,
Dist. Jalgaon. ... Appellant
(Ori. Defendant)
Versus
Barsu Vithoba Varde (Deceased)
Through Legal Heirs,
1) Anand Barsu Varade,
Age: 40 years, Occu. Agri.,
2) Govinda Barsu Varade,
Age: 35 years, Occu. Agri.
3) Sindhubai Murlidhar Rane,
Age: 60 years, Occu. Household,
4) Anjanabai Murlidhar Talele,
Age: 55 years, Occu. Household,
5) Sakhubai Ramdas Kolhe,
Age: 52 years, Occu. Household,
6) Maltabai Rajendra Kinage,
Age: 50 years, Occu. Household,
7) Sarlabai Chandrakant Patil,
Age: 48 years, Occu. Household,
8) Shardabai Nivrutti Bhangale,
Age: 45 years, Occu. Household,
9) Sugandhabai Barsu Varade (Deceased)
All R/o Kahurkheda, Tal. Bhusawal,
Dist. Jalgaon. ... Respondents
(Ori. Plaintiff)
2 SA.640-15 & ors.odt
...
Advocate for Appellant : Mr. Bhapkar S. B.
Advocate for Respondent Nos.1 to 5 & 8 : Mr. Gholap Ajit M.
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 03.10.2025
PRONOUNCED ON : 09.10.2025
JUDGMENT :
1. Heard both sides.
2. Learned counsel for the appellant has tendered on
record a compilation of paper book and the relevant
documents are part of record. I have gone through Exh.Nos.45,
46, 35 and the pleadings.
3. Appellant/original defendant is challenged concurrent
findings of facts recorded by Courts below while decreeing the
suit for specific performance of contract in favour of the
respondent/plaintiff.
4. Land Gut No.373 measuring 2 H. 46 R. belonged to the
appellant. Out of that, 1 Hector was agreed to be sold vide
agreement dated 01.06.1994, Exh.35, for Rs.60,000/-. Out of
that, respondent paid Rs.40,000/- as earnest. The sale deed
3 SA.640-15 & ors.odt
was agreed to be executed on 10.01.1995. Respondent called
upon appellant to execute the sale deed vide notice dated
07.01.1995. In these background, Regular Civil Suit No.87 of
2001 is filed by respondent for specific performance of
contract.
5. Appellant contested the suit by filing written statement
contending that it was a money lending transaction. The
respondent was a money lender who advanced Rs.19,500/- to
the appellant. He fraudulently got executed agreement by
obtaining signature of the appellant on blank stamp paper.
The notice dated 07.01.1995 was false, hence, no reply was
given. The respondent gave notice to the appellant on
02.03.1993. There was no transaction of agreement to sale
between the parties.
6. Respondent examined two witnesses to prove the
agreement and the transaction between the parties. Appellant
also adduced oral evidence of her husband who was Power of
Attorney.
7. Trial Court decreed the suit on 02.05.2003. Being
4 SA.640-15 & ors.odt
aggrieved, Regular Civil Appeal No.259 of 2003 was filed
which was dismissed vide judgment dated 09.04.2013.
8. Learned counsel for the appellant would press into
service the substantial questions of law submitted along with
compilation. It is submitted that both Courts below did not
consider the notices Exh.45 and 46. The Lower Appellate Court
failed to exercise the jurisdiction in totally overlooking the
notices. It is submitted that the transaction between the parties
has not been established. The agreement Exh.35 is sham and
bogus shrouded by suspicious circumstances. It is submitted
that the original blank stamp paper has not been brought on
record. It is further submitted that the suit land is the only
property with the appellant and the grave hardship will be
caused if sale deed of the suit land is executed. It is submitted
that respondent is not entitled to discretionary relief. The
matter needs to be remanded for considering all aspects of the
matter.
9. Per contra, learned counsel Mr. Gholap submits that
notices Exh.45 and 46 were considered by the Trial Court.
Exh.45 was not in respect of the present transaction but it was
5 SA.640-15 & ors.odt
addressed to appellant's husband Subhash. Notice Exh.46 is
totally after thought and prepared when the cross-examination
was under way. It is further submitted that plaintiff did not
step into witness box and adverse inference needs to be drawn.
It is contended that the submissions of the appellant have no
foundation in appeal memo. It is further submitted that
appellant did not make any complaint of alleged fraud. The
concurrent findings of facts are required to be confirmed.
10. The grievance of the appellant that Gut No.373 is the
only land and the hardship likely to be caused to the appellant
dis-entitles the respondents for the discretionary reliefs. Out of
2 H. and 84 R. of Gut No.373, the agreement of sale was
executed to the extent of 1 H. only. The balance land is still
with the appellant. I do not approve the submission that the
relief is unequitable causing grave hardship to the appellant.
11. The Trial Court dealt with notices Exh.45 and 46. The
appeal memo of Regular Civil Appeal No.259 of 2003 does not
spell out any ground in respect of notices Exh.45 and 46. If
such ground was not pressed into service, obviously Appellate
Court was not obliged to deal with it. I do not find any fault
6 SA.640-15 & ors.odt
for non-consideration of Exh.45 and 46 by Lower Appellate
Court. Merely for that reason, matter cannot be remanded.
12. The notice at Exh.45 bears date 02.03.1993 issued to
husband of the appellant Subhash referring to lending of
money on 19.05.1989. The agreement Exh.35 is executed on
01.06.1994. It was between appellant and the respondent. Her
husband Subhash was only witness, not executor. It cannot be
said that the notice has any relevance to the transaction in
question. It pertains to some previous transaction with
Subhash.
13. Respondent filed suit on 14.12.1995. Appellant filed
written statement in the year 1996. The plaintiff's witness was
being cross-examined, that time notice dated 05.09.2002
Exh.46 was issued by appellant to the respondent. The theory
that agreement was manipulated and false document, is after
thought. The notice was issued to fill up the lacuna. It was
not a notice issued prior to institution of the suit.
14. It is stated in the written statement by the appellant that
she did not feel it necessary to reply the notice dated
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07.01.1995. If this is the situation, then Exh.45 and 46 would
not come to rescue the appellant. The money lending
transaction cannot be proved. No case is made out to remand
the matter. Both Courts below have concurrently recorded
findings against the appellant.
15. Appellant did not step into witness box. Her husband
who is power of attorney cannot depose on her behalf. When
appellant comes up with a case that she was deceived and her
signatures on blank stamp paper was misused for preparation
of agreement to sell, she was under obligation to step into
witness box. She failed to face the cross-examination and
adverse inference needs to be drawn against her. Mr. Gholap,
learned counsel for the respondent has rightly relied on the
case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank
Ltd. and others ; 2005 (3) Bom. C. R. 846 . I rely on the
paragraph Nos.13 to 16 of the judgment of the Apex Court as
follows :
"13. Order 3, Rules 1 and 2 of CPC, empower the holder of
power of attorney to "act" on behalf of the principal. In our
view the word "acts" employed in Order 3, Rules 1 and 2
CPC, confines only in respect of "acts" done by the power of
attorney holder in exercise of power granted by the
8 SA.640-15 & ors.odt
instrument. The term "acts" would not include deposing in
place and instead of the principal. In other words, if the
power of attorney holder has rendered some "acts" in
pursuance to power of attorney, he may depose for the
principal in respect of such acts, but he cannot depose for the
principal for the acts done by the principal and not by him.
Similarly, he cannot depose for the principal in respect of the
matter which only the principal can have a personal
knowledge and in respect of which the principal is entitled to
be cross-examined.
14. Having regard to the directions in the order of remand
by which this Court placed the burden of proving on the
appellants that they have a share in the property, it was
obligatory on the part of the appellants to have entered the
box and discharged the burden. Instead, they allowed Mr.
Bhojwani to represent them and the Tribunal erred in
allowing the power of attorney holder to enter the box and
depose instead of the appellants. Thus, the appellants have
failed to establish that they have any independent source of
income and they had contributed for the purchase of the
property from their own independent income. We
accordingly hold that the Tribunal has erred in holding that
they have a share and are co-owners of the property in
question. The finding recorded by the Tribunal in this respect
is set aside.
15. Apart from what has been stated, this Court in the
case of Vidhyadhar Vs. Manikrao and Another, (1999) 3 SCC
573 observed that
9 SA.640-15 & ors.odt
"where a party to the suit does not appear in the
witness-box and states his own case on oath and does
not offer himself to be cross-examined by the other
side, a presumption would arise that the case set up
by him is not correct".
16. In civil dispute the conduct of the parties is material.
The appellants have not approached the Court with clean
hands. From the conduct of the parties it is apparent that it
was a ploy to salvage the property from sale in the execution
of Decree."
16. It is alleged that respondent was doing money lending
business. It is further alleged that fraudulently agreement was
got prepared. Appellant did not file any complaint with police.
She did not approach the competent authority against money
lender. Appellant has miserably failed to establish the defence.
I find no error of jurisdiction in the findings recorded by Courts
below.
17. Respondent examined two witnesses to prove the
document. The execution was proved and it was exhibited as
Exh.35. The non-examination of the scribe would not vitiate
the document. Both Courts below have rightly appreciated
evidence on record in decreeing the suit.
10 SA.640-15 & ors.odt
18. Learned counsel Mr. Bhapkar relies on the judgment of
Rajendra Lalitkumar Agrawal Vs. Ratna Ashok Muranjan and
another ; 2019 AIR (SC) 702. I have considered paragraph
No.15 of the judgment.
"15. From the reading the impugned order, we find that, on
one hand, the High Court went on interpreting the terms of
the document after hearing the argument of both sides (see
appearance of both parties through lawyers) and on the
other hand, in conclusion, held that it does not involve any
substantial question of law. It virtually, therefore, decided the
second appeal bipartite like the first appeal without keeping
in view the scope of its jurisdiction conferred by Section 100
(4) and (5) of the Code. In our view, the approach of the
High Court while deciding the second appeal was not in
conformity with the requirements of Section 100 of the
Code."
This Court has not interpreted any new document for the
first time. The conduct of the appellant is commented. The
concurrent findings of facts are held to be plausible. Hence,
this judgment will not help appellant.
19. Further reliance is placed on the judgment of C. Venkata
Swamy Vs. H. N. Shivanna (D) by L.Rs. and another ; 2017
AIR (SC) 5604. I have gone through paragraph Nos.10 to 13 of
11 SA.640-15 & ors.odt
the judgment, in which, inter alia reliance is placed on the
previous judgments of Supreme Court and scope of jurisdiction
of Appellate court is explained. The ratio cannot be disputed.
In the case at hand, I find no error of jurisdiction in the
judgment of Lower Appellate Court.
20. Mr. Bhapkar further relies on the judgment of
Gulabchand Fakirchand Gandhi (D) through his legal heirs
Kiran and others Vs. Indubai Pundalik Jape (D) through her
Legal heirs Shakuntala and others ; 2019 (2) AIR Bom. R. 9 . I
have gone through paragraph No.8, which inter alia refers to
couple of judgments. The parameters for interference by the
High Court under Section 100 of CPC are laid down. But in
the present case, appellant failed to make out any case.
21. Lastly, reliance is placed on the judgment of Kamal
Kumar Vs. Premlata Joshi and others ; 2019 AIR (SC) 459 to
buttress that grant of relief of specific performance is
discretionary. No case is made out by the appellant to show
that the discretion exercised by Courts below is perverse or
unequitable or causing undue hardship. These judgments will
not help the appellant.
12 SA.640-15 & ors.odt
22. I find that no substantial question of law exists in the
present case. The substantial questions pressed into service are
meritless and ostensible.
(i) Second appeal is dismissed.
(ii) Needless to mention that interim relief granted
earlier shall stand vacated.
(iii) In view of disposal of second appeal, pending civil
application does not survive. Civil application as
such is disposed of.
(SHAILESH P. BRAHME, J.)
...
vmk/-
23. After pronouncement of the judgment, learned counsel
for the appellant prays for continuation of interim relief which
was in operation since long. The appellant is in possession of
the suit land. Hence, it is submitted that the possession needs
to be protected till the appellant approaches higher forum.
13 SA.640-15 & ors.odt
24. The request is opposed by the learned counsel for the
respondents.
25. The appellant is in possession and his possession is
protected by interim relief operating in the matter till this date.
The interim relief granted earlier shall be continued for further
period of six (6) weeks, which shall stand vacated after the
above said period without reference to the Court.
(SHAILESH P. BRAHME, J.)
...
vmk/-
