Bombay High Court
Abdul Hamid Abdul Majid And Others vs Amar Chahus Mubarak Chahus on 8 September, 2025
2025:BHC-NAG:8883
1 sa258.2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.258/2016
1. Abdul Hamid Abdul Majid,
Aged about 56 years, R/o Talabpura,
Jalgaon Jamod, Tq. Jalgaon Jamod,
District Buldhana.
2. Dr. Agakhan Reheman Patel,
Aged about 80 years,
3. Shamim Nikhat W/o Agakhan,
aged about 74 years,
Both resident of Malkapur,
Madar Tekdi, Parpeth,
District Buldhana. Appellants.
Versus
Amar Chahus Mubarak Chahus
Aged about 71 years, in R/o Talabpura,
Jalgaon Jamod, Tq. Jalgaon Jamod,
District Buldhana. Respondent.
Mr. Masood Shareef, Advocate along with Mr. Mr.A.J. Mirza and Mr. S.I.Jagirdar,
Advocates for the appellants.
Mr. A.A.Sawal, Advocate for the respondent.
CORAM : ROHIT W.JOSHI, J.
DATE : SEPTEMBER 8, 2025.
ORAL JUDGMENT
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1. The present respondent had filed a suit for specific performance of
contract being Special Civil Suit No.55 of 2005. The said suit came to be
dismissed and the decree for dismissal of suit for specific performance is
confirmed up to this Court vide judgment and decree dated 11 th September,
2017 passed in Second Appeal No.108/2016. It is admitted that the said
judgment is not challenged any further. It is the case of the respondent in the
said suit for specific performance that the suit property was owned by the
defendant no.3-Original defendant no.2. Perusal of the plaint averments will
further indicate that, according to the plaintiff, the suit property was sold by
defendant no.2 to the defendant no.3, who is present appellant no.1 vide sale
deed dated 13.05.2005. The sale deed was executed by the defendant no.2
acting through her husband, who is also her constituted attorney. In such
circumstances, the defendant no.3 also filed a counter claim for possession
against the plaintiff. The said counter claim was supported by the defendant
nos.1 and 2 who are the vendor and power of attorney holder of the vendor.
The learned Trial Court has dismissed the suit for specific performance, as
mentioned above. However, the counter claim for possession was also
dismissed on the ground that the defendant no.3 had failed to establish his title
over the suit property. The learned Trial Court has observed that the power of
attorney on the basis of which the sale deed was executed in favour of the
defendant no.3 as also the sale deed were neither produced on record nor
proved. The appeal preferred by the defendant no.3 was also dismissed for the
same reason.
2. The present appeal came to be admitted on 11 th September, 2017 by
framing the following substantial question of law:
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"In the light of the pleadings of the plaintiff with regard to
execution of sale-deed dated 13th May, 2005 by the defendant
no.1, whether the counter-claim was liable to be dismissed?"
3. Mr. Masood Shareef, learned Advocate for the appellant, contends that
the plaintiff had filed suit for specific performance of contract against the
defendant nos.1 to 3 claiming that the defendant no.2 was the owner of the
suit property. It is also stated in the plaint that the defendant no.2 had sold
the suit property to the defendant no.3 vide sale deed dated 13.05.2005. He,
therefore, contends that the plaintiff cannot dispute the title of the defendant
no.3 and rather the title is in terms admitted by the plaintiff going by plaint
averments themselves. He further contends that since the suit for specific
performance of contract was dismissed, the plaintiff does not have any right to
oppose the prayer for possession in the counter claim filed by defendant no.3
since the defendant nos.1 and 2 support the case of the defendant no.3.
4. Per contra, Mr. Aniket Sawal, learned Advocate for the respondents
strenuously opposes the contention stating that in order to succeed in a suit for
possession, the plaintiff must prove his title and unless the title is proved,
decree for possession cannot be passed.
5. It is undisputed that the suit property was owned by the defendant no.2.
The plaintiff claims to have entered into an agreement of sale with the
defendant no.2. It is expressly stated in the plaint that the defendant no.2 is
the owner of the suit property. The fact that the defendant no.2 has executed
sale deed in favour of the defendant no.3, through her husband and
constituted attorney is mentioned in the plaint itself. The defendant nos.2 and
defendant no.1 i.e. owner and her husband have supported the case of the
defendant no.3, who has purchased the property from them. It is thus clear
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that the ownership of the defendant no.2 is not in dispute and the defendant
no.2 does not dispute the ownership of defendant no.3.
6. In view of the fact that the plaintiff's suit for specific performance of
contract is dismissed all throughout did not have any right to oppose the
counter claim for possession.
7. It is well settled that a plaintiff, who proves ownership over the
immovable property, is entitled for decree for possession unless the defendant
can make out a better title or demonstrate that the suit is barred by limitation.
None of these contingencies are established. Rather the title of vendor of the
defendant no.3 is expressly admitted and the said vendor is supporting the
case of the defendant no.3.
8. In view of the above, decree for possession needs to be granted in
favour of the defendant no.3/counter claimant. The substantial question of law
is, therefore, is answered in favour of the appellant. The judgment and decree
dated 1/8/2009 passed by the Civil Judge (Sr.Dn.) Khamgaon in Special Civil
Suit No.55/2005 and the judgment and decree dated 3.11.2015 passed by
District Judge-2, Khamgaon, District Buldhana in Regular Civil Appeal No.
75/2009 are quashed and set aside. The counter claim filed by the appellant
no.1 i.e. defendant no.3 in Special Civil Suit No.55/2005 decided by learned
Civil Judge, Senior Division, Khamgaon is decreed by directing the respondent-
plaintiff to deliver the possession of the suit property to the appellant-
defendant no.3. Parties to bear their own costs. Decree be drawn accordingly.
Civil Application No.928/2024
9. The said Civil Application is filed seeking leave to produce additional
evidence with respect to the General Power of Attorney dated 29.3.2025
executed by the defendant no.2 in favour of defendant no.1 and sale deed
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dated 13.5.2005 executed by defendant no.2 acting through defendant no.1 as
duly constituted attorney in favour of defendant no.3.
10. In view of the reasons recorded above, the counter claim is required to
be decreed even in the absence of the said documents. Civil application stands
dismissed.
(ROHIT W. JOSHI, J.)
Mukund Ambulkar
Signed by: Ambulkar (MLA)
Designation: PS To Honourable Judge
Date: 09/09/2025 19:33:02
