Bombay High Court
Smt. Shantabai Dashrath Raskar vs Dhondiba Bala Raskar And Ors. on 17 September, 2025
Digitally signed
VARSHA by VARSHA
VIJAY
VIJAY RAJGURU
RAJGURU Date:
2025.09.18
18:02:18 +0530
30-sa-505-1998-ia-10282-2022.doc
varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 505 OF 1998
WITH
CIVIL APPLICATION NO. 170 OF 2003
Smt. Shantabai Dashrath Raskar ... Appellant/Applicant
vs.
Dhondiba Bala Raskar and Ors ... Respondents
WITH
INTERIM APPLICATION NO. 10283 OF 2022
IN
SECOND APPEAL NO. 505 OF 1998
Dhumdeo Dasharath Raskar(Legal Heirs of ... Applicant
Deceased Smt. Shantabai Dashrath Raskar)
IN THE MATTER BETWEEN
Smt. Shantabai Dashrath Raskar ... Appellant
vs.
Dhondiba Bala Raskar and Ors ... Respondents
Mr. Sugandh Deshmukh a/w. Mr. Aniket Kanawade for Appellant.
Mr. Sanjiv Sawant a/w. Ms. Bhakti Wast i/b. Mr. Heramb Kadam for
Respondent No. 1A to 1C.
CORAM : GAURI GODSE, J.
DATED : 17th SEPTEMBER 2025
ORDER:
1. This second appeal is preferred by the original plaintiff to
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challenge the judgment and decree passed by the first appellate
court dismissing the suit for specific performance. The trial court had
partly decreed the suit by granting refund of the amount. The prayer
for specific performance was dismissed. However, defendant nos.
1A to 1C were restrained from obstructing the plaintiff's possession
without following due course of law.
2. The trial court's decree was challenged by defendant no.1A to
1C. In this appeal, the plaintiff had filed cross objections in support
of his prayer for specific performance. The appeal court has partly
allowed the appeal and set aside the trial court's decree and
dismissed the suit. The cross objections are also dismissed. The
decree for refund of earnest amount is confirmed with the directions
that the plaintiff should recover the amount and hand over
possession of the suit land to defendant nos. 1A to 1C. Hence, this
second appeal by the original plaintiff.
3. The second appeal is admitted on the following substantial
question of law:
"1. That the Learned District Judge has erred in not
appreciating that in the Plaintiff suit, no direction can be given
against Plaintiff and in favour of Defendant."
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4. Learned counsel for the appellant submits that there are
additional questions of law that would arise in the second appeal.
He submits that the first appellate court has not correctly
appreciated the evidence on record and has ignored that none of
the defendants has stepped into the witness box to support his
contention regarding the nature of the suit agreement. He submits
that the appellate court has wrongly casted burden upon the plaintiff
to prove the real nature of the agreement. He submits that even the
findings recorded on readiness and willingness are not in
accordance with the evidence on record.
5. I have perused the pleadings, evidence and both the
judgments. The defendants have not filed any counter claim to seek
possession. The defendants' contention is that the registered
agreement, i.e. the suit agreement is not an agreement for sale and
it was executed by way of security for repayment of loan. The
defendants had not entered into the witness box to support their
contention. The evidence led by the defendants was by an
independent witness. On perusal of the appeal court's findings, it
does not reveal that the evidence has been correctly appreciated.
The dispute regarding the nature of the transaction is raised by the
defendants. The suit agreement is a registered agreement, hence,
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the second appeal would also raise the questions of law on the
findings recorded by the first appellate court on the nature of the
transaction and the plaintiff's claim for specific performance.
6. Hence, in addition to the aforesaid question of law, the
following substantial questions of law are framed, in view of the
proviso to sub-section (5) of Section 100 of the Civil Procedure
Code, 1908:
I) Whether the first appellate court has misappreciated the
evidence on record while recording findings on the nature of
transaction of the document at Exhibit-70 by ignoring that the
defendants had not stepped into the witness box to support
their objections on the nature of transaction?
II) Whether the findings recorded by the first appellate court
on the plaintiff's claim for a decree for specific performance
ignores the material evidence on record and whether the
prayer for specific performance is refused by misappreciating
the evidence on record?
7. Learned counsel for respondent no.1A to 1C waives notice
on the aforesaid questions of law.
8. So far as respondent nos. 2 and 3 are concerned, none
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appears for them.
9. Even, otherwise respondent nos. 1A to 1C are the contesting
respondents.
10. Learned counsel for the respondents seeks a week's time for
the responding to the additional questions of law.
11. List the second appeal on 24th September 2025.
12. To be listed on the daily board.
(GAURI GODSE, J.)
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