k 1/3 22 sa 417.17 as.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.417 OF 2017 Kamal Pandu Bhopi ....Appellant V/S Arun Goma Patil & Ors. ....Respondents WITH SECOND APPEAL NO.152 OF 2018 Arun Goma Patil & Ors. ....Appellants V/S Kamal Pandu Bhopi since deceased through his legal heirs and representatives Krushnabai Kamal Bhopi & Ors. ....Respondents _________ Mr. Sham Thakur a/w Mr. J.M. Joshi for Appellant in SA 417 of 2017 and for Respondent in SA 152 of 2018. Mr. Shirish V. Pitre for Respondent in SA 417 of 2017 and for Appellant in SA 152 of 2018. __________ CORAM : SANDEEP V. MARNE, J. DATE : 1 SEPTEMBER 2026. P.C.: 1. These are cross Appeals filed against the decree dated 27 November 2006 passed by the learned Civil Judge Senior Division, Alibag in Special Civil Suit No.8 of 2002 as confirmed by the Lower Appellate Court by the judgment and order dated 22 June 2016. The Suit was filed for specific performance of oral Agreement for purchase of land admeasuring 0H.06R. Admittedly, there is no written Agreement for the katkam Page No. 1 of 3 2026:BHC-AS:36123 k 2/3 22 sa 417.17 as.doc alleged purchase transaction. However, the Trial Court has held that the Plaintiff was able to prove that the Defendants’ father had agreed to sale the land to her for consideration of Rs.300/- in the year 1965. The Trial Court has also upheld payment of consideration of Rs.300/- by the Plaintiff to the father of the Defendants. The Trial Court has also held that Plaintiff was put in possession of the suit land. However, upon assessment of the evidence, the Trial Court has held that the Plaintiff could not prove readiness and willingness to perform her part of the contract. On this count, specific performance of the oral Agreement is denied by the Trial Court. Strangely, Plaintiff raised claim of adverse possession while claiming right of specific performance. The two pleas are mutually exclusive. The Trial Court has rightly rejected both the pleas. The Trial Court however has directed refund of amount of Rs.300/- alongwith interest in favour of the Plaintiff. Since possession of the Plaintiff is proved the Trial Court has restrained Defendant Nos.1 to 4 from dispossessing the Plaintiff without following due process of law. The findings recorded by the Trial Court are concurrently upheld by the first Appellate Court. 2. I have heard Mr. Pitre, the learned counsel appearing for the Appellants in Second Appeal No.152 of 2018 and Mr. Thakur, the learned counsel appearing for the Appellant in Second Appeal No.417 of 2017. 3. What is conducted by the Trial Court is a mere factual enquiry into existence of oral Agreement for Sale and readiness and willingness of the Plaintiff to perform such oral Agreement. After assessing the evidence katkam Page No. 2 of 3 k 3/3 22 sa 417.17 as.doc on record though the Trial Court has ruled in favour of the Plaintiff about existence of oral Agreement for Sale and payment of part consideration of Rs.300/-, Trial Court could not record finding of readiness and willingness on the part of the Plaintiff to perform her part of the contract. Thus, factual findings are recorded by Trial Court by assessing the evidence on record. The evidence is marshaled by the First Appellate Court and the findings of fact are upheld. I find no reason to interfere in the said concurrent findings in Second Appeal filed by the Plaintiff. 4. Defendants are merely aggrieved by injunction granted by the Trial Court in favour of the Plaintiff from dispossessing Plaintiff from the suit property. However, this relief is subject to the caveat that Defendants can always claim by possession of the suit property after following due process of law. In my view, Defendants clearly committed an error in not filing counter claim for claiming possession of the suit property. Now also they are not deprived of remedy of recovery of possession. They can institute a fresh suit for seeking back possession of the suit property from the Plaintiff. So far as findings relating to Plaintiff’s possession are concerned, the same are again fact based findings not involving any question of law. 5. Considering overall conspectus of the case, I am of the view that no substantial questions of law are involved in either of the Appeals. Both the Second Appeals are accordingly dismissed. (SANDEEP V. MARNE, J.) katkam Page No. 3 of 3 Signed by: Sudarshan R. Katkam Designation: PS To Honourable Judge Date: 03/09/2026 11:36:59