Bombay High Court
Kailash 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
PAGE 1 OF 23
-- 2 -- SA 269.2023 (J) + 1.odt
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 PAGE 2 OF 23
-- 3 -- SA 269.2023 (J) + 1.odt 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 PAGE 3 OF 23
-- 4 -- SA 269.2023 (J) + 1.odt 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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-- 5 -- SA 269.2023 (J) + 1.odt
(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 PAGE 5 OF 23
-- 6 -- SA 269.2023 (J) + 1.odt 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 PAGE 6 OF 23
-- 7 -- SA 269.2023 (J) + 1.odt 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 PAGE 8 OF 23
-- 9 -- SA 269.2023 (J) + 1.odt 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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-- 10 -- SA 269.2023 (J) + 1.odt "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 PAGE 10 OF 23
-- 11 -- SA 269.2023 (J) + 1.odt 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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-- 12 -- SA 269.2023 (J) + 1.odt (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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-- 13 -- SA 269.2023 (J) + 1.odt (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 PAGE 13 OF 23
-- 14 -- SA 269.2023 (J) + 1.odt 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 PAGE 14 OF 23
-- 15 -- SA 269.2023 (J) + 1.odt 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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-- 16 -- SA 269.2023 (J) + 1.odt
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 PAGE 16 OF 23
-- 17 -- SA 269.2023 (J) + 1.odt 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 PAGE 17 OF 23
-- 18 -- SA 269.2023 (J) + 1.odt 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 PAGE 18 OF 23
-- 19 -- SA 269.2023 (J) + 1.odt 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 PAGE 19 OF 23
-- 20 -- SA 269.2023 (J) + 1.odt 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 PAGE 20 OF 23
-- 21 -- SA 269.2023 (J) + 1.odt 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 PAGE 21 OF 23
-- 22 -- SA 269.2023 (J) + 1.odt 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