SA 188 of 2022 + 1 - Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO.188/2022 APPELLANT : Shri Mohammad Rafik S/o Sheikh Hanif, (Plaintiff/ Aged about 72 Years, Occu: Business, Respondent) R/o Temple Bazar, Nana Soni Lani, Sitabuldi, Nagpur. ...VERSUS... RESPONDENTS : 1. Satyanarayan S/o Pyarelal Yadao, (Defendant no.2) Aged 70 Years, Occ.: Business, R/o Vishwanath Apartment, Buty Wada, Near Gioriraj Hotel, Temple Bazar Road, Sitabuldi, Nagpur-12. (Defendant No.3) 2. Shambhudayal S/o Pyarelal Yadao, Aged 65 Years, Occ.: Retired, R/o 572/E/9, Surendragarh, Beside Sai Medicals, Seminary Hills, Nagpur-6. (Defendant no.5) 3. Mayadevi W/o Biharilal Yadao, Aged 54 Years, Occ.: Not Known, R/o C/o L. B. Yadao, Quarter no. 128, Sanjay Road, Chakki, Near Bengal Club, Jamshedpur (Jharkhand) (Defendant no.6) 4. Chhayadevi S/o Arunkumar Yadao, Aged 59 Years, Occ.: Advocate, R/o Plot no. 206/2, West High Court Road, Nagpur. (Defendant no.1) 5. Ramadevibai Wd/o Pyarelal Yadav, (Deleted as per pursis Exh.76 and application Exh.77) (Defendant no.4) 6. Shyama Pyarelal Yadao, (Deleted as per pursis Exh.76 and application Exh.77) 2026:BHC-NAG:4286 SA 188 of 2022 + 1 - Judgment.odt 2 -------------------------------------------------------------------------------------------------- Mr. M.R. Joharapurkar, Advocate for appellant Mr. A.M. Sudame, Advocate for respondent Nos.1 and 2 --------------------------------------------------------------------------------------------------- WITH SECOND APPEAL NO.186/2022 APPELLANT : Shri Mohammad Rafik S/o Sheikh Hanif, (Plaintiff/ Aged about 72 Years, Occu: Business, Respondent) R/o Temple Bazar, Nana Soni Lani, Sitabuldi, Nagpur. ...VERSUS... RESPONDENTS : 1. Satyanarayan S/o Pyarelal Yadao, (Defendant no.2) Aged 70 Years, Occ.: Business, R/o Vishwanath Apartment, Buty Wada, Near Gioriraj Hotel, Temple Bazar Road, Sitabuldi, Nagpur-12. (Defendant No.3) 2. Shambhudayal S/o Pyarelal Yadao, Aged 65 Years, Occ.: Retired, R/o 572/E/9, Surendragarh, Beside Sai Medicals, Seminary Hills, Nagpur-6. (Defendant no.5) 3. Mayadevi W/o Biharilal Yadao, Aged 54 Years, Occ.: Not Known, R/o C/o L. B. Yadao, Quarter no. 128, Sanjay Road, Chakki, Near Bengal Club, Jamshedpur (Jharkhand) (Defendant no.6) 4. Chhayadevi S/o Arunkumar Yadao, Aged 59 Years, Occ.: Advocate, R/o Plot no. 206/2, West High Court Road, Nagpur. (Defendant no.1) 5. Ramadevibai Wd/o Pyarelal Yadav, (Deleted as per pursis Exh.76 and application Exh.77) SA 188 of 2022 + 1 - Judgment.odt 3 (Defendant no.4) 6. Shyama Pyarelal Yadao, (Deleted as per pursis Exh.76 and application Exh.77) -------------------------------------------------------------------------------------------------- Mr. M.R. Joharapurkar, Advocate for appellant Mr. A.M. Sudame, Advocate for respondent Nos.1 and 2 --------------------------------------------------------------------------------------------------- CORAM : ROHIT W. JOSHI, J. DATE : 09/03/2026 ORAL JUDGMENT : 1. A decree for specific performance of contract was passed in favour of the appellant in both these appeals, in Regular Civil Suit No.135/2012 (Old Special Civil Suit No.554/1985), decided by the learned 2nd Joint Civil Judge, Junior Division, Nagpur. The original defendant Nos.2, 3, 5 and 6 challenged the said decree for specific performance of contract by filing appeal being Regular Civil Appeal No.406/2017, which came to be decided by the learned Ad hoc District Judge – 1, Nagpur vide judgment and decree dated 27/09/2021. The learned first Appellate Court has rejected the prayer for specific performance of contract and has instead, granted relief of refund of earnest money with simple interest @ 6% per annum from the date of agreement till the date of realization of amount. The said decree passed in Regular Civil Appeal No.406/2017 is subject matter of challenge in Second Appeal No.188/2022. Likewise, the aforesaid judgment and SA 188 of 2022 + 1 - Judgment.odt 4 decree, passed by the learned Trial Court was also challenged by defendant Nos.1, 2 and 3 by filing separate appeal being Regular Civil Appeal No.450/2016. The said appeal was also partly allowed by the learned Ad hoc District Judge -1, Nagpur vide separate judgment and decree dated 27/09/2021, thereby substituting the decree for specific performance of contract, passed in Regular Civil Suit No.135/2012 with decree for refund of earnest money of Rs.10,000/- with simple interest @ 6% per annum. Second Appeal No.186/2022 arises out of the said judgment and decree passed in Regular Civil Appeal No.450/2016. 2. The appellant is the original plaintiff in a suit for specific performance of contract being Regular Civil Suit No.135/2012 (Old Special Civil Suit No.554/1985). The suit property is a shop block admeasuring around 264 sq. ft. The suit property, which is a part of a larger property admeasuring more than 7,000 sq. ft., was owned by three brothers. One of the brothers, namely, Pyarelal, who had expired in the year 1951 had to wives, namely, Rukhminibai and Ramadevi. Pyarelal married with Ramadevi after demise of his first wife. Ramadevi has begotten three daughters and two sons from her wedlock with Pyarelal. Pyarelal had eight children from his first wife Rukhminibai. Ramadevi and her five children filed a suit for partition and separate possession against the children of Pyarelal begotten from his first wife Rukhminibai. The said suit came to be registered as Special Civil Suit SA 188 of 2022 + 1 - Judgment.odt 5 No.9/1965, in which decree for partition and separate possession granting 1/14th share each to the eight children of Pyarelal begotten from first wife Rukhminibai and Ramadevi and her five children was passed. 3. Subsequently, one Durgaprasad, son of Biharilal (brother of Pyarelal) also filed a suit for partition and separate possession being Special Civil Suit No.146/1968, in which a decree for partition and separate possession was passed. In the suit for partition and separate possession filed by Durgaprasad, decree for partition and separate possession was passed with respect to some other properties, however, the suit was dismissed with respect to the aforesaid property of which present suit property is a part. Durgaprasad thereafter preferred an appeal before this Court being First Appeal No.52/1977, in which decree for partition and separate possession was also passed with respect to the aforesaid property. Accordingly, in the final decree proceeding, portion admeasuring 3907 sq. ft. fell to the share of Durgaprasad and 3901 fell to the share of descendants of Pyarelal. The respondents in the present Second Appeal are children of Pyarelal begotten from his first wife Rukhminibai. 4. It will be pertinent to state that 1/14th share of Brindaban, son of Pyarelal from his first wife Rukhminibai was sold in execution of decree passed against him. The property was purchased by one SA 188 of 2022 + 1 - Judgment.odt 6 Govindnarayan Bansilal Agrawal in execution proceeding. Mr. Agrawal has purchased a shop plot in the aforesaid property, which was in occupation of the present appellant as a tenant. Subsequently, he initiated proceeding for eviction against the present appellant and obtained a decree for possession. The said decree is executed and accordingly, the purchaser Mr. Agrawal is in possession of the said shop, which was in occupation of the present appellant as tenant. 5. The present appellant had entered into an agreement of sale on 12/05/1985 with respect to the suit shop with Ramadevi (respondent No.5) and her two sons and Satyanarayan (respondent No.1) and Shambhudayal (respondent No.2). Ramadevi (respondent No.5) had expired and her name was ordered to be deleted from the array of Second Appeal. The description of the suit property is as under :- “House No. 242, a block containing a shop named Rakesh Electricals. This is situated on the West High Court Road near Udyam Press, total area of which, is 244.75 sq. ft., boundaries of which are as follows. To the East – West High Court Road To the West - The Scribe's house To the North - Noble Watch Service To the South - Monali Embroidery ” SA 188 of 2022 + 1 - Judgment.odt 7 6. It will be pertinent to state that although the names of three daughters of Ramadevi i.e. respondent Nos.3, 4 and 6 are also mentioned as vendors in the aforesaid agreement of sale, the agreement is signed only by Ramadevi and her sons i.e. respondent Nos.1 and 2. The daughters i.e. respondent Nos.3, 4 and 6 have not signed the agreement. 7. Since the vendors did not execute sale-deed in favour of plaintiff/appellant in terms of the aforesaid agreement, he filed the aforesaid suit for specific performance of contract. The learned 2nd Joint Civil Judge, Junior Division, Nagpur has decreed the suit vide judgment and decree dated 01/04/2016 inter alia directing the defendant Nos.2 and 3 (respondent Nos.1 and 2) to execute the sale-deed to the extent of their 1/6th share in the suit shop block in favour of the plaintiff. Likewise, the respondent Nos.1 to 4 and 6 (defendant Nos.1, 2, 3, 5 and 6) were also directed to execute sale-deed with respect to 1/6th share of their mother deceased Ramadevi in favour of the appellant/plaintiff. The suit was dismissed with respect to half portion i.e. 1/6th share each of present respondent Nos.3, 4 and 6 (defendant Nos.4, 5, and 6). In this backdrop, the present appellant, who is the original plaintiff, preferred appeal challenging the said decree to the extent to which the suit was dismissed against the original defendant Nos.4, 5 and 6 (respondent Nos.2, 4 and 6) being Regular Civil Appeal SA 188 of 2022 + 1 - Judgment.odt 8 No.406/2017. Likewise, the present respondent Nos.1 and 2, who are the original defendant Nos.2 and 3, also preferred appeal, challenging the decree for specific performance of contract passed against them and with respect to share of their mother Ramadevi being Regular Civil Appeal No.450/2016. 8. Vide two separate judgments delivered on 27/09/2021, the learned Ad hoc District Judge – 1, Nagpur partly allowed Regular Civil Appeal No.406/2017, preferred by the present appellant/original plaintiff, dismissing the suit with respect to prayer for specific performance and instead granting a decree for return of earnest money of Rs.10,000/- along with simple interest @ 6% per annum from 12/05/1985 i.e. date of execution of agreement. Regular Civil Appeal No.450/2016 filed by the present respondent Nos.2 and 3 (defendant Nos.2 and 3) came to be allowed by passing identical decree for dismissal of suit qua the prayer for specific performance and directing refund of earnest with interest. In this backdrop, the appellant, who is the original plaintiff, has preferred two Second Appeals i.e. Second Appeal No.188/2022 and Second Appeal No.186/2022. 9. The learned first Appellate Court has substituted a decree for specific performance of contract with a decree for refund of earnest by arriving at conclusion that the suit property was not available to be sold to the appellant/plaintiff, since it was already purchased by SA 188 of 2022 + 1 - Judgment.odt 9 Mr. Agrawal in the execution proceedings. In this backdrop, vide order dated 05/04/2023, following substantial questions of law are framed in Second Appeal No.188/2022 :- “(i) Whether the learned Appellate Court erred in understanding the fact of the case and failed to come to conclusion that, Ramadevi and Defendants did not get share in the suit property as one of the block is already purchased by Agrawal and it is confirmed by Hon’ble High Court whereas the block purchased by Agrawal and confirmed by Hon’ble High Court is not at all concern with the block purchased by present Appellant/Plaintiff and thus learned Appellate Court had come to perverse finding that, Defendants No.1 to 3 do not have right to execute sale deed in respect of suit block when suit block and block in possession of Agrawal as per decree are different? (ii) The first Appellate Court misread the Judgment in F.A. No. 52/1977 and had come to conclusion in Para-22 of Judgment that it was against Judgment and decree in Suit No.9/1965 whereas it was challenging the judgment and decree in Spl.C.S. No.146/1968, thus said findings are perverse?” 10. The learned Advocates are ad idem that the same questions arise for consideration in the other Second Appeal i.e. Second Appeal No.186/2022 as well. With the consent of the learned Advocates for the parties, the Second Appeals are taken up for final hearing on the aforesaid substantial questions of law. SA 188 of 2022 + 1 - Judgment.odt 10 Substantial question of law No.(ii) :- (ii) The first Appellate Court misread the Judgment in F.A. No.52/1977 and had come to conclusion in Para-22 of Judgment that it was against Judgment and decree in Suit No.9/1965 whereas it was challenging the judgment and decree in Spl.C.S. No.146/1968, thus said findings are perverse? 11. Perusal of judgment delivered by this Court in First Appeal No.52/1977 clearly indicates that the said appeal arose out of Special Civil Suit No.146/1968 i.e. suit for partition and separate possession filed by Durgaprasad son of Biharilal. The said appeal was not preferred against the judgment and decree in the suit for partition, filed by the present respondents and their mother, which is Special Civil Suit No.9/1965. The finding by the learned first Appellate Court with respect to First Appeal No.52/1977 is clearly contrary to the record and therefore perverse. The finding by the learned first Appellate Court that the suit property i.e. shop was a part of the property, which fell to the share of Durgaprasad, is contrary to record. Second substantial question of law is answered accordingly in favour of the appellant and against the respondents. Substantial question of law No.(i) :- “(i) Whether the learned Appellate Court erred in understanding the fact of the case and failed to come to conclusion that, Ramadevi and Defendants did not get share in SA 188 of 2022 + 1 - Judgment.odt 11 the suit property as one of the block is already purchased by Agrawal and it is confirmed by Hon’ble High Court whereas the block purchased by Agrawal and confirmed by Hon’ble High Court is not at all concern with the block purchased by present Appellant/Plaintiff and thus learned Appellate Court had come to perverse finding that, Defendants No.1 to 3 do not have right to execute sale deed in respect of suit block when suit block and block in possession of Agrawal as per decree are different? 12. Learned first Appellate Court has come to a conclusion in paragraph 34 that the suit shop block was sold to Mr. Agrawal in the execution proceedings. Mr. Agrawal purchased the share of one Brindaban son of Pyarelal, begotten from his first wife. The present appellant/plaintiff was in possession of one shop block adjoining the suit property as a tenant. This shop block, which was in occupation of the appellant/plaintiff as tenant, was purchased by Mr. Agrawal. Mr. Agrawal had filed a suit for possession against the present appellant/plaintiff, in which the decree for possession was passed in his favour. Second Appeal No.12/2000, preferred by the present appellant/plaintiff as a Proprietor of Nobel Watch Company was dismissed vide judgment dated 14th and 17th , August 2007. The present appellant/plaintiff was not in possession of suit property i.e. property which was subject matter of agreement in question, as a tenant. It will also be pertinent to state that description of suit property in the agreement in question will also demonstrate that the shop block in SA 188 of 2022 + 1 - Judgment.odt 12 occupation of the appellant/plaintiff as tenant was located along the Northern boundary of the suit property. 13. The learned first Appellate Court has modified the decree on the ground that the suit property, which formed the subject matter of agreement of sale, was not available for sale, since it was already purchased by Mr. Agrawal. The said observation is also contrary to the record. 14. It will also be pertinent to state that the learned first Appellate Court has observed that the share of the respondents in the property was not sufficient to satisfy the decree. The learned first Appellate Court has also recorded in paragraph 45 of the judgment that the suit property is not divisible. In this regard, it must be stated that final decree proceeding, pursuant to preliminary decree for partition and separate possession, is still pending. The learned first Appellate Court ought not to have made the said observation since final decree proceeding with respect to arising out of Special Civil Suit No.9/1965 is still pending. Final decree is not yet passed in the suit for partition being Special Civil Suit No.9/1965. 15. The learned first Appellate Court has also observed that mother Ramadevi and one of sisters, namely, Shyama did not get a share in the suit property, inasmuch as they were not part of the proceeding, arising out of suit for partition being Special Civil Suit SA 188 of 2022 + 1 - Judgment.odt 13 No.9/1965. Said observation is also incorrect. The share of mother Ramadevi is inherited by her five children. As regard Shyama, it is informed that she was unmarried and accordingly also her share in the suit property will devolve on her real brothers and sisters. 16. In view of the aforesaid, first substantial question of law also answered in favour of appellant/original plaintiff. 17. The other aspects of the matter are not dealt with by the learned first Appellant Court on the ground that the suit property is not available for sale is incorrect. The said issues cannot be dealt with in Second Appeal for the first time. Substantial questions of law framed in the present appeals are also not relating to other aspects of the suit for specific performance. 18. In view of the aforesaid Second Appeals are partly allowed in the following terms : - (i) Judgments and decrees dated 27/09/2021, passed by the learned Ad hoc District Judge-1, Nagpur in Regular Civil Appeal No.406/2017 and Regular Civil Appeal No.450/2016 are quashed and set aside. (ii) The appeals are remitted to the learned Ad hoc District Judge-1, Nagpur for deciding both appeals afresh in accordance with law. SA 188 of 2022 + 1 - Judgment.odt 14 (iii) It is clarified that in the event decree for specific performance is upheld, execution thereof will be subject to outcome of the final decree proceeding in the suit for partition being Special Civil Suit No.9/1965. (iv) Parties shall appear before the learned first Appellate Court on 06/04/2026. Parties to note that separate notice for appearance will not be issued. (v) Parties to bear their own costs. (ROHIT W. JOSHI, J.) Wadkar Signed by: S.S. Wadkar (SSW) Designation: PS To Honourable Judge Date: 13/03/2026 20:36:32