[Cites 14, Cited by 0]
Bombay High Court
Kailash S/O Purushottamdas Kanugo And ... vs Sureshkumar S/O Laxminarayan ... on 17 February, 2026
2026:BHC-NAG:3645
-- 1 -- SA 269.2023 (J) + 1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 269 OF 2023
1. Kailash S/o Purushottamdas Kanugo
Aged 67 years, Occ : Advocate
R/o. C-12, Sourabh Apartments, .. Appellants
Hill Top, Ramnagar, Nagpur-440 033 Ori. Defendant No.1
Mobile No.9890138355
2. Smt. Rekha W/o Kailash Kanugo
Aged about 62 years, Occ:Household
R/o. C-12, Sourabh Apartments, Ori. Defendant No.2
Hill Top, Ramnagar, Nagpur-440 033
Versus
1. Sureshkumar S/o Laxminarayan
Shandilya
Aged about 73 years, Occ : Retired
R/o.183, Nelco Layout, Subhash
Nagar, Nagpur .. Respondents
2. Mahadeo S/o Uttamrao Kadu
Aged about 72 yars, Occ : Retired
R/o Nand Apartments, Indraprastha
Layout, Swavalambi Nagar, Nagpur -
440 022
WITH
SECOND APPEAL NO. 315 OF 2023
1. Kailash s/o Purushottamdas Kanugo
Aged 67 years, Occ : Advocate
R/o. C-12, Sourabh Apartments, .. Appellants
Hill Top, Ramnagar, Nagpur-440 033 Original Plaintiff No.1
Mobile No.9890138355
e-mail : [email protected]
2. Smt. Rekha W/o Kailash Kanugo
Aged about 62 years, Occ:Household
R/o. C-12, Sourabh Apartments, Original Plaintiff No.2
Hill Top, Ramnagar, Nagpur-440 033
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Versus
1. Sureshkumar S/o Laxminarayan
Shandilya
Aged about 73 years, Occ : Retired .. Respondent
R/o. 183, Nelco Layout, Subhash Original Defendant
Nagar, Nagpur
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Mr.K.P.Kanugo, appellant No.1 (Advocate) in person.
Mr.S.S.Dewani, Advocate for respondent No.1 in S.A.No.269/2023
and for respondent in S.A. No.315/2023.
Mr.S.P.Kshirsagar, Advocate for respondent No.2 in S.A.
No.269/2023.
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CORAM : ROHIT W. JOSHI, J.
DATED : FEBRUARY 17, 2026
ORAL JUDGMENT
(1) At the outset, it must be stated that the appeal was
extensively argued by both the learned advocates on 10/02/2026. The
matter was part heard and was ordered to be listed first on board on
16/02/2026 for reply arguments of the appellants. On 16/02/2026 the
appellant No.1 who is practicing advocate appeared in person and
made a motion stating that he wants to engage another Advocate to
represent the appellants. In view of the request made, learned counsel
for the appellants was granted discharge vide order dated 16/02/2026.
The appeal was adjourned to 17/02/2026 at the request of appellant
No.1. On 17/02/2026, the appellant No.1 appeared in person and
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made a request to grant adjournment in order to engage another
advocate. The request was turned down since arguments of both sides
were almost fully heard on 10/02/2026 and reply arguments of
appellants was to be heard. The appellant No.1 then tendered a pursis
dated 17/02/2026 across the bar stating that he was suffering from
various ailments and it would be difficult for him to argue the case in
person. Certain medical reports of the year 2025 were filed with the
said pursis. However, having regard to the fact that the appeal was
almost completely heard, the request for adjournment was turned
down. The appellant No.1 argued the appeal in person. He argued the
appeal almost for one hour. The appellant No.1 was comfortable during
the course of hearing and argued the appeal without any discomfort.
(2) It will be pertinent to mention that the defendant No.1
has argued the first appeals in person as can be seen from the
paragraph 32 of the judgment by the learned first appellate Court.
(3) The appellants are aggrieved by judgment and decree
dated 16/10/2019 passed by the learned Civil Judge Senior Division,
Nagpur in Spl.C.S.No.95/2005 and judgment and decree dated
06/04/2023 passed by the learned District Judge-16, Nagpur in
R.C.A.No.456/2019. The respondent No.1 is plaintiff in R.C.S.
No.95/2005. The appellants are the defendants No.1 and 2, and
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respondent No.2/Mahadeo Kadu is defendant No.3 in the said suit. The
appellant No.1 is husband of appellant No.2.
(4) R.C.S.No.95/2005 was filed by the respondent/
Sureshkumar seeking the following reliefs :-
"1. Pass a decree for possession of the suit premises
against defendant no1 and 2 directing them to hand over
vacant and peaceful possession of suit premises to the
plaintiff.
2. Pass a decree directing defendant no 1 and 2 to pay
rupees 2,500 towards occupational charges along with 18%
interest from the date of suit till realization.
3. Pass a decree of Permanent Injunction and restrain
defendant no 3 from entering into any sort of contract,
agreement, sale, gift, mortgage, lease and license with any
other party.
4. declare that the agreement 18-09-2002 is entitled to be
rescinded by the plaintiff due to non performance of there
part of the contract by the defendants and further hold that
the same has been rescinded at the cost of the defendants.
5. Saddle the cost.
6. Any other relief deemed fit in the interest of justice be
granted."
(5) The appellants have also filed a suit against the
respondent No.1 in R.C.S.No.267/2018 seeking the following reliefs :-
(i) Pass a 'Decree of Perpetual injunction' to permanently
restrain the Defendant, his agent, relative, servant, or
anybody acting or claiming on his behalf, from dispossessing
the Plaintiffs from the "suit-flat", described in the Schedule.;
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(ii) Debarr the defendant or his relative/agent etc.
permanently from enforcing any right [ownership or
otherwise ] in respect of the "suit-flat" which has been taken
in possession by plaintiffs under the part performance of the
contract.;
(iii) Grant interim relief in terms of prayer clause (i) till the
disposal of suit.,
(iv) Grant any other relief deems fit and proper in the
circumstances of the case and in the interest of justice
including costs of suit."
(6) The appellants will hereinafter referred to as
'purchasers', the respondent No.1 will be referred as 'vendor' and
the respondent No.2 will be referred as 'constituted attorney'.
(7) The vendor and purchasers had entered into an
agreement of sale dated 18/09/2002 whereby the vendor agreed to sell
and the purchasers agreed to purchase the suit property which
comprises of an apartment bearing Flat No.C-1 situated at first floor of
a building known as 'Saurabh Apartment' situated at Ambazari Layout
Block No.52/1 and 52/2, Ambazari, Nagpur for a consideration of
Rs.8,25,000/-. Out of the total consideration of Rs.8,25,000/- the
purchasers paid a sum of Rs.5,00,000/- to the vendor on the date of
execution of agreement and issued three post dated cheques; two of
Rs.1,25,000/- each and one for an amount of Rs.75,000/- towards
payment of balance consideration of Rs.3,25,000/-. The purchasers
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were placed in possession of the suit property on the date of execution
of agreement itself. The agreement of sale is an unregistered
document.
(8) It is the case of the vendor that having entered into the
agreement of sale, the purchasers avoided to perform their part of
contract and committed breach of agreement. The vendor stated that
despite repeated attempts on his part to complete transaction, the
purchasers avoided to make payment of balance consideration and
thus, committed breach of the agreement. The vendor therefore,
instituted aforesaid suit for rescission of contract and recovery of
possession. The said suit which was instituted on 19/01/2005 came to
be registered as Spl.C.S.No.95/2005.
(9) After a period of around thirteen years, thereafter, the
purchasers also instituted a suit against vendor on 05/03/2018, which
came to be registered as R.C.S.No.267/2018 seeking injunction against
the vendor from dispossessing them from the suit property without
following due process of law and seeking further injunction debarring
the vendor from enforcing ownership rights or any other rights with
respect to the suit property. It is the case of the purchasers that
having received an amount of Rs.5,00,000/- in terms of agreement of
sale, the vendor did not complete the formalities, which were to be
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fulfilled by him in terms of the agreement. It is contended that
because of the lapse on the part of the vendor, the agreement of sale
could not be registered, as a consequence of which, the purchasers
could not avail loan for making payment of balance consideration of
Rs.3,25,000/-.
(10) Both these suits were tried together in view of joint
pursis at Exh.194 tendered by the vendor and the purchasers. It will
be pertinent to note that the constituted attorney was joined as
defendant No.3 in the vendor's suit.
(11) The learned trial Court decreed Spl.C.S.No.95/2005 filed
by the vendor granting a declaration that the agreement of sale dated
18/09/2002 was legally rescinded and accordingly a decree for
possession came to be passed in favour of the vendor. The suit filed by
the purchasers came to be dismissed. The learned trial Court has
recorded findings that the purchasers had committed breach of the
agreement of sale dated 18/09/2002 and that they were not ready and
willing to perform their part of the contract. In view of such findings,
the learned trial Court arrived at conclusion that the agreement was
validly rescinded by the vendor. It is further held that the purchasers
are not entitled to protection of their possession over the suit property
under Section 53-A of the Transfer of Property Act, 1882.
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(12) The admitted facts of the case are that -
(i) the parties had entered into an agreement of sale on
18/09/2002;
(ii) out of agreed sale consideration of Rs.8,25,000/-, purchasers
have paid sum of Rs.5,00,000/- to the vendor and sum of
Rs.3,25,000/- is outstanding;
(iii) the purchasers are placed in possession of the suit property on
18/09/2002 i.e. on the date of execution of agreement;
(iv) agreement of sale is an unregistered document;
(v) the agreement was rescinded by the vendor vide notice dated
17/03/2004 (Exh.119); and
(vi) the purchasers have not filed suit for specific performance of
contract against the vendor.
(13) The principal contention of the appellants/purchasers is
that they have paid an amount of Rs.5,00,000/- out of the total agreed
consideration of Rs.8,25,000/- to the vendor and that the sale
transaction could not be completed on account of failure on the part of
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the vendor to complete the formalities for registration of agreement
which was necessary to enable the purchasers to obtain loan in order
to make payment of balance sale consideration of Rs.3,25,000/-. The
substantial questions of law were framed in the Second Appeal
No.269/2023 vide order dated 01/10/2024, which read as under :-
"i] Was it proved by the plaintiff that he is entitled to file
suit in view of Sub-section 1(a) of Section 27 of the Specific
Relief Act, 1963 ?
ii] Was the First Appellate Court and Trial Court incorrect
and illegal while adjudging rescission of contract and doing
equity by directing the appellant to pay an amount of
Rs.5,00,000/- as compensation towards unlawful occupation
charges to the defendants ?
iii] Who has committed breach of conditions of Contract
of Sale dated 18/09/2002 ?
iv] Have the Trial Court and First Appellate Court ignored
Sections 52 and 54 of the Indian Contract Act, 1872 with
regard to order of performance of reciprocal promises
expressed in the Contract of Sale ?
v] Are the Trial Court and First Appellate Court illegal
and incorrect in not considering Sub-sections 27(a) and
27(b) of the Specific Relief Act, 1963 which are the legal bar
to file the said suit ?"
(14) In Second Appeal No.315/2023 following substantial
questions of law were framed vide order dated 01/10/2024 which reads
as under :-
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"i] Was the First Appellate Court illegal and incorrect
while considering application for additional evidence under
Order 41 Rule 27 of the Code of Civil Procedure, 1908 by
holding that the appellant is trying to delay the appeal
without deciding it on merit ?
ii] Are the Trial Court and First Appellate Court illegal
and incorrect in dismissing the suit of the plaintiff for
perpetual injunction in view of recitals in the Contract of
Sale?"
Substantial questions of law Nos.(i), (iii), (iv) and (v) in
S.A.No.269/2023 :-
(15) At the outset it must be stated that the purchasers do
not have title over the suit property. They are in occupation of the suit
property on the basis of an agreement of sale. The vendor is
admittedly, owner of the suit property who has filed suit for possession
along with a prayer for rescission of agreement of sale in favour of
purchasers. Section 54 of the Transfer of Property Act clearly provides
that agreement of sale does not by itself create any interest over
property. It is also well settled that decree for possession cannot be
denied to owner of the property unless the defendant establishes a
right to occupy the property despite not being owner thereof. A person
who holds possession of immovable property on the basis of an
agreement of sale in his favour can oppose the prayer for possession in
a suit filed against him by vendor only under Section 53-A of the
Transfer of Property Act or by obtaining a decree for specific
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performance. While dealing with the questions of law framed in the
appeals it is necessary to consider as to whether, in the absence of
rescission of contract, the vendor plaintiff will be entitled for decree of
possession.
(16) In this regard, it will be appropriate to refer to judgment
of the Hon'ble Supreme Court in the case of Nathulal vs.
Phoolchand, reported in AIR 1970 SC 546. In paragraph 7 of the
judgment, the Hon'ble Supreme Court has held that if the purchaser
who is placed in possession of immovable property under an agreement
of sale, the vendor who is owner of the property is entitled to a decree
for possession even if he has committed breach of the agreement
unless the purchaser establishes right to continue to be in possession
of the property as per Section 53-A. It is held that claim for possession
made by the vendor can be defeated by the purchaser only if defence
of entitlement to retain possession under Section 53-A of the Transfer
of Property Act is established by the purchaser. Relevant extract of the
judgment is reproduced hereunder for ready reference :-
"7. The High Court proceeded to decide the case largely upon
the view that Nathulal committed breach of contract. But the
question whether Nathulal had committed the breach is not of much
significance. Nathulal was the owner of the land : he had executed
no conveyance in favour of Phoolchand in the land or the factory.
Nathulal had sued for possession relying upon his title, and
Phoolchand could defeat that claim if he established his defence of
part-performance under Section 53A of the Transfer of Property
Act."
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(17) Assuming the case of the appellants/purchasers to be
true, it must be stated that the agreement in question is dated
18/09/2002. The agreement is executed after 24/09/2001 i.e. the date
on which Section 17(1-A) was introduced in the Registration Act, 1908.
Section 17(1-A) reads as under :-
"Section 17(1-A) The documents containing contracts to transfer
for consideration, any immovable property for the purpose of
section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall
be registered if they have been executed on or after the
commencement of the Registration and Other Related laws
(Amendment) Act, 2001 (48 of 2001) and if such documents are
not registered on or after such commencement, then, they shall
have no effect for the purposes of the said section 53A.]"
(18) Thus, in view of the said provision, a purchaser who is
placed in possession of immovable property pursuant to an agreement
of sale which is not registered then the purchaser is not entitled to
protect his possession under Section 53-A of the Transfer of Property
Act; even if he satisfies and fulfills all the ingredients of Section 53-A of
the Transfer of Property Act. The Hon'ble Supreme Court has in the
case of Ameer Minhaj vs. Dierdre Elizabeth, (2018) 7 SCC 639
held as under :-
"10. On a plain reading of this provision, it is amply clear that the
document containing contract to transfer the right, title or interest in an
immovable property for consideration is required to be registered, if
the party wants to rely on the same for the purposes of Section 53-A
of the 1882 Act to protect its possession over the stated property. If it
is not a registered document, the only consequence provided in this
provision is to declare that such document shall have no effect for the
purposes of the said Section 53-A of the 1882 Act."
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(19) In view of legal position, even if it is assumed that the
vendor is at fault and the purchasers were ready to perform their part
of the contract all through out and also that they satisfied all the
ingredients of Section 53-A of the Transfer of Property Act, yet the
purchasers cannot avoid the decree for possession, since admittedly
vendor is owner of the suit property and protection under Section 53-A
cannot be granted to the purchasers since the agreement of sale is an
unregistered document. In the case at hand the purchasers are trying
to take shelter under Section 53-A of the Transfer of Property Act, in
order to avoid decree for possession, however, since the agreement of
sale is admittedly not registered, the purchasers will not be entitled to
take benefit of the said provision. It will be pertinent to state that
Section 53-A of the Transfer of Property Act initially provided for
protection in part performance even in cases where the agreement was
not registered, however, the words "the contract though required to be
registered, has not been registered, or" have been deleted from the
provision w.e.f. 24/09/2001. A parallel amendment is introduced in the
Registration Act, where registration of agreement of sale is made
compulsory in order to seek benefit of protection of possession in part
performance of contract under Section 53-A of Transfer of Property Act.
(20) The purchasers, however, contend that the rescission of
contract itself is bad and therefore, the vendor cannot claim decree for
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possession. The said contention is liable to be rejected in view of the
legal position summarized above.
(21) However, it must also be stated that both the learned
Courts have concurrently held that the purchasers have committed
breach of the agreement and even on facts, have found that rescission
of contract by the vendor was completely justified.
(22) The case of the purchasers is that the plaintiff vendor
failed to discharge his obligations under the agreement as a
consequence of which the purchasers could not get the agreement
registered which was essential to obtain bank loan in order to make
payment of balance sale consideration of Rs.3,25,000/-. The
purchasers therefore blame the vendor for non-completion of sale
transaction. In this regard it must be stated that admittedly the
vendor had executed a power of attorney in favour of defendant No.3
to take steps for completion of the sale transaction. The vendor has
pleaded that defendant No.3 was appointed as constituted attorney on
suggestion of the purchaser/defendant No.1. The purchasers have
stated that defendant No.3 was appointed as constituted attorney of
vendor with mutual consent since vendor was then a Central
Government employee and it was difficult him to fulfill the formalities
for completing the sale transaction. The defendant No.3 was appointed
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as constituted attorney on suggestion of defendant No.1 (purchaser) is
not denied. The purchasers raised contention that although defendant
No.3 did not take effective steps for completing the sale transaction,
the vendor did not terminate the power of attorney and also did not
take steps for appointing any other person as constituted attorney. In
this regard it also needs to be stated that the purchasers have also not
entered into correspondence with the constituted attorney with regard
to steps to be taken for completion of sale transaction although
defendant No.3 was appointed as constituted attorney as suggested by
purchaser/defendant No.1. The defence of failure on the part of the
vendor to perform his part of the contract therefore, cannot be
entertained in the peculiar facts of the present case.
(23) The learned trial Court has observed that the vendor had
obtained No Objection Certificate (NOC) from the Society and had
delivered it to the purchasers vide notice dated 09/09/2003. The
purchasers admitted receipt of NOC. The learned trial Court has found
that the parties had agreed to share the liability for payment on ground
rent and unearned income equally, however, the purchasers were not
ready to share burden for the same which indicates failure on the part
of the purchasers to perform the their part of the contract.
(24) It must also be stated that despite rescission of the
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contract vide notice dated 17/03/2004, the plaintiffs did not file suit for
specific performance of contract till the institution of the suit by the
vendor on 19/01/2005. The purchasers filed a suit for injunction
against threatened forcible dispossession and declaration that vendor
should not claim ownership right over the suit property. This suit was
filed on 05/03/2018 i.e. after a period around 14 years from the date
of termination notice dated 17/03/2004 and 13 and half year from the
date of institution of suit for rescission of contract and possession filed
by vendor. Even in this suit, the purchasers have not prayed for
specific performance of contract.
(25) In the case of A. Lewis and another vs.
M.T.Ramamurthy and others reported in AIR 2008 SC 493 the
Hon'ble Supreme Court has held that protection under Section 53-A of
the Transfer of Property Act cannot be claimed by a person who is
passive and does not take proactive steps towards enforcement of the
agreement. Relevant observations of the Hon'ble Supreme Court are
extracted herein below :-
"6. As rightly pointed out by the High Court, the existence of
right to claim protection under Section 53-A of the Transfer of
Property Act would not be available if the transferee just kept quiet
and remained passive without taking effective steps. Further he must
also perform his part of the contract and convey his willingness."
(26) Similar view is taken by this Court in the case of
Ghanshyam Deoram Gaikwad vs. Samshon John Gaikwad and
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another reported in 2020 (2) Mh.L.J. 451. This Court has held that
a purchaser who does not take steps for filing proceeding for
enforcement of agreement is not entitled to seek protection under
Section 53-A.
(27) It is well settled that by catena of decisions of the
Hon'ble Supreme Court as also this Court that in order to seek
protection under Section 53-A of the Transfer of Property Act, a
purchaser must establish that he has performed or was always willing
to perform his part of the contract. In the case at hand, the said
willingness is completely absent. The purchasers have also miserably
failed to establish that they were ready to perform their part of
contract. The purchasers have avoided to take effective steps for
completing the sale transaction for a period of over two decades from
the date of execution of agreement. More importantly even after
receiving notice for termination of contract dated 17/03/2004, they
have not filed suit for specific performance. The purchasers have
rather filed a suit for declaration and injunction in the year 2018, after
a period of around 14 years from the date of termination of contract.
The purchasers are not entitled to take shelter under Section 53-A of
the Transfer of Property Act on undisputed facts of the case. Apart
from Section 53-A there is no other provision under which the
purchasers can avoid decree for possession. The ratio of the said
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judgment is squarely attracted in the facts of the present case.
(28) In the light of aforesaid judgment in the case of
Nathulal, Ameer Minhaj, A.Lewis and Ghanshyam
Gaikwad(supra), even if the contention of purchasers that vendor
failed to perform his part of the contract is accepted, that by itself will
not take the case of defendants/purchasers any further since the
vendor/plaintiff is admittedly owner of the suit property and protection
under Section 53-A cannot be claimed in view of the fact that the
agreement is unregistered and the purchasers have been completely
passive in enforcement of the agreement.
(29) In the light of aforesaid legal position, even if the
substantial question of law framed in the appeal are answered in favour
of the appellants/purchasers, the final outcome of the case will not
change. The decree passed against the purchasers cannot be reversed
even if the substantial questions of law are answered in their favour
since their possession cannot be protected by granting protection under
Section 53-A because the agreement is an unregistered document and
also because of passivity in enforcement of agreement by the
purchasers.
(30) In the light of clear exposition of law by the Hon'ble
Supreme Court in the case of Nathulal (supra) it must be held that
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even if the vendor/plaintiff is assumed to be in breach of the
agreement, decree for possession cannot be denied to him. Apart from
the findings by the learned Courts that the purchasers have failed to
establish readiness and willingness to comply with the agreement,
thereby dis-entitling them from occupying the property under section
53-A, protection under the Act, provision cannot be granted to the
purchasers on two undisputed grounds, namely, the agreement is not
registered, and there is complete passivity on the part of the
purchasers in enforcing the agreement despite notice for cancellation of
agreement issued by the vendor. Substantial questions of law at Sr.
Nos. 1 and 3 to 5 are therefore, required to be answered in favour of
the plaintiff/vendor.
(31) An agreement of sale does not confer any right over
immovable property. The purchasers did not take steps to transform
the agreement of sale into a completed transaction of sale. The vendor
has filed suit for rescission of agreement of sale. However, since
agreement does not confer any right, the vendor could have filed a suit
simplicitor for possession without seeking relief of rescission of
contract. Even in the absence of prayer for rescission, the purchasers
could have defended the suit to oppose the prayer for possession by
taking shelter under Section 53-A only. Since the protection under
Section 53-A is not available, decree for possession cannot be faulted
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even if plaintiff/vendor fails to make out a case for rescission of
contract under Section 27 of the Specific Relief Act and in view of
Nathulal (supra), even if it is assumed that he has committed breach
of agreement. The decree for possession in favour of plaintiff/vendor,
therefore, cannot be set aside, even if substantial questions of law at
Sr. Nos. (i) and (iii) to (v) were to be answered in favour of the
purchasers/appellants.
Substantial question of law No. (ii) in Second Appeal
No.269/2023 :-
(32) The learned trial Court has held that since the purchasers
have occupied the suit property even after termination notice dated
27/03/2004, and have failed to make out a case under section 53-A,
their possession was illegal. As on the date of the judgment by the
learned trial Court, the illegal possession was for a period of around
15½ years. The learned trial Court held that, plaintiff vendor was
entitled to occupancy charges for this period of illegal occupation of suit
property by the purchasers. The learned trial Court held that
purchasers were not entitled to refund of consideration of ₹5 Lakhs
paid by them to the vendor as per the agreement inasmuch as they
said amount was liable to be adjusted against illegal occupancy
charges. It will be pertinent to state that the vendor had examined a
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valuer for the purpose of computation of occupancy charges, however,
the learned trial Court did not find the evidence of the valuer
confidence inspiring and therefore discarded the same. It is no doubt
true that after termination of the contract, the possession of the
purchasers is illegal. It is also true that the purchasers were not ready
and willing to perform their part of the contract. However, it needs to
be noted that as on the date of agreement, the purchasers had paid an
amount of ₹5 lakhs to the vendor, out of the total agreed sale,
consideration of ₹8,25,000/-. The vendor has earned interest over the
said amount. In such circumstances, it will be appropriate to direct the
vendor to refund amount of ₹5 lakhs received from the purchasers
without any interest. This in the considered opinion of this Court, will
subserve the ends of justice by balancing the equities.
Substantial question of law Nos.(i) and (ii) in Second Appeal
No. 315/2023 :-
(33) Second Appeal, 315 of 2023 out of suit filed by the
purchasers, seeking injunction, restraining the vendor from enforcing
any right of ownership or otherwise, with respect to suit property and
from dispossessing them from the suit property. Learned Advocate for
the appellant during the course of hearing on 10/02/2026 and
thereafter the appellant who argued the appeal in person on
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17/02/2026 did not advance any submission on the aforesaid
substantial questions of law. It is obvious that decree for possession is
passed in favour of the vendor in the suit field by him and therefore the
apprehension of illegal dispossession is taken care of. As already held
above purchasers are not entitled to protection under Section 53-A.
The second substantial question of law is rendered redundant in view of
judgment in Second Appeal No.269/2023 wherein decree for
possession in favour of vendor is upheld. As regards the first
substantial question of law pertaining to additional evidence, although
the said question was not argued either by the learned Advocate for
the appellants or by the appellant No.1 in person, it must be stated
that the documents with respect to which additional evidence was
sought to be led have been considered by the learned first appellate
Court in paragraphs 54 to 61 of the judgment.
(34) In the light of the above, the Second Appeal
No.315/2023 deserves to be dismissed and is dismissed accordingly.
Second Appeal No.269/2023 is partly allowed by passing a decree for
refund of Rs.5,00,000/- (Rupees Five Lakhs only) without interest, in
favour of the appellants/purchasers directing the respondent/vendor to
pay the said amount to the appellants/purchasers. The
appellants/purchasers will be entitled to receive the said amount of
Rs.5 Lakhs only after delivering peaceful vacant possession of the suit
PAGE 22 OF 23
-- 23 -- SA 269.2023 (J) + 1.odt
property to the respondent vendor (plaintiff in R.C.S.No.95/2005).
Appellants shall bear the costs of the respondents in both the appeals
all throughout.
(35) The conduct of the appellant No.1 who is practicing
advocate is recorded in paragraph 1 of the judgment. The record also
indicates that on earlier occasion, the appellant No.1 filed pursis dated
28/08/2024 calling for recusal of the learned Judge, who was hearing
these appeals. The said pursis was withdrawn vide pursis dated
20/09/2024. Having regard to such conduct, costs of Rs.50,000/- are
imposed on the appellants. The costs be deposited in Public Welfare
Account, the details of which are given below :-
Account Name : Public Welfare Account
Account No. : 129112010001014
Bank Name : Union Bank of India,
Branch Name : High Court, Civil Lines, Nagpur
IFSC Code : UBIN0812978.
[ ROHIT W. JOSHI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 23 OF 23
Designation: PA To Honourable Judge
Date: 05/03/2026 15:40:55
