16..sa.49.2023 Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.49 OF 2023 APPELLANT (Ori. Deft no.1) On R.A. :- Uttam Ukandaji More, aged about 60 years, Occpn – retired employee, Pil Colony, Niwara Colony no.2, Malkapur, Akola, Taluka and district – Akola. ..VERSUS.. RESPONDENTS (Ori Plaintiffs) On R.A. :- 1) Sau. Preeti Vasant Shegokar, aged about 47 years, Occp – Household work, 2) Sau. Vrishali Vinod Vibhute, aged about 47 years, Occp – Household work, Both residents of Vijay Housing Society, Gorakshan Road, Akola. 3) Smt. Shalini Vishwanathrao Munje, (since deceased through her legal heirs) a) Jay Vishwanathrao Munje, aged adult, Occpn – business, b) Vijay Vishwanathrao Munje, aged adult, occpn – business, Both R/o Congress Nagar, Malkapur, Akola, taluka and district - Akola ------------------------------------------------------------------------------------------------------------------------------------ Mr. J.B. Gandhi, Advocate for Appellant. Mr. S.V. Sirpurkar, Advocate for Respondent Nos.1 and 2. ------------------------------------------------------------------------------------------------------------ CORAM : ROHIT W. JOSHI, J. DATE : 17/02/2026 2026:BHC-NAG:2960 16..sa.49.2023 Judgment.odt 2 ORAL JUDGMENT : 1. The present appeal is preferred challenging judgment and decree dated 07.02.2019 passed by the learned District Judge-5, Akola, in Regular Civil Appeal No.75 of 2018, thereby reversing the judgment and decree dated 29.03.2018 passed by the learned 7th Jt. Civil Judge Junior Division, Akola, in Regular Civil Suit No.161 of 2007. The appellant in the present Second Appeal is defendant No.1 before the learned trial Court. The respondent Nos.1 and 2 are original plaintiffs and respondent No.3 is original defendant No.2. 2. The present appellant had initially filed a suit being Regular Civil Suit No.20 of 2001 against the respondent No.3 for specific performance of contract. The case of the appellant in the said suit is that on 09.05.2000, the appellants and respondent No.3 had entered into an agreement of sale for purchase of the suit property for consideration of Rs.57,342/-, out of which an amount of Rs.35,000/- was paid by the appellant to the respondent No.3. The learned 2nd Jt. Civil Judge Junior Division, Akola, decided the suit vide judgment and decree dated 23.10.2002, issuing directions to refund earnest amount of Rs.25,000/- to the appellant along with interest at the rate of 6% per annum. The appellant being aggrieved 16..sa.49.2023 Judgment.odt 3 by the refusal of the learned trial Court to grant a decree for specific performance of contract, the appellant preferred appeal being Regular Civil Appeal No.246 of 2002. The said appeal was allowed by the learned 3rd Ad-hoc Additional District Judge, Akola, vide judgment and decree dated 28.06.2005. The learned Appellate Court passed a decree for specific performance of contract in favour of appellant. 3. It will be pertinent to state that the respondent No.3 had executed a registered sale deed with respect to the suit property in favour of one Vasant Kothari on 02.02.2000. Mr. Vasant Kothari sold the suit property to Mr. Manish Mishra vide registered sale deed dated 16.07.2001, who in turn, sold the same to the respondent Nos.1 and 2 by two separate sale deeds dated 11.07.2002. It will be pertinent to state that the decree for specific performance passed in favour of the appellant was put to execution and in the execution proceedings, sale deed with respect to suit property came to be executed and registered in favour of the appellant. The appellant thereafter obtained possession of the suit property in the execution proceedings. However, it must be stated that the warrant of possession is issued in the name of respondent No.3, who had already sold and parted with possession of the suit 16..sa.49.2023 Judgment.odt 4 property on 02.02.2000. 4. It is the contention of the respondents that the said possession was merely a paper possession and that actual physical possession was not delivered, since the respondent No.3 was not in possession of the property on the date of which the warrant for possession was purportedly executed and also on the date on which suit for specific performance was instituted by the appellant against the respondent No.3. 5. The respondent Nos.1 and 2 had thereafter filed a suit seeking declaration that the aforesaid decree for specific performance was obtained by practicing fraud and collusion and therefore a nullity. The said suit which came to be registered as Regular Civil Suit No.161 of 2007 was dismissed by the learned 7th Joint Civil Judge Junior Division, Akola, vide judgment and decree dated 29.03.2018. The aforesaid judgment was challenged by the respondent Nos.1 and 2 by filing appeal being Regular Civil Appeal No.75 of 2018, which came to be allowed by the learned District Judge-5, Akola, vide judgment and decree dated 07.02.2019. The learned Appellate Court has granted a declaration that judgment and decree for specific performance of contract in favour of the appellant is a nullity and that the appellant did not acquire any 16..sa.49.2023 Judgment.odt 5 interest or ownership rights over the suit property on the basis of sale deed executed in his favour in the execution proceedings. The learned Appellate Court also granted injunction restraining the appellant herein from creating any obstruction or disturbing the possession of the respondent Nos.1 and 2 over the suit property. 6. The learned Appellate Court while allowing the appeal has recorded that the judgment and decree in the suit for specific performance is obtained by collusion. The foundation for arriving at such a finding is that although, the defendant in the said suit had filed written statement but did not contest the suit by conducting cross-examination of the appellant (plaintiff in suit for specific performance) and also did not lead independent evidence. More importantly, the defendants in the said suit for specific performance (respondent No.3 in the present appeal), also did not disclose the fact of the alienation of the suit property vide registered sale deed dated 02.02.2000 in favour of Vasant Kothari. 7. The appellant/original plaintiff in the suit for specific performance of contract, has preferred the present appeal challenging the said decree dated 07.02.2019. 8. In the considered opinion of this Court, the issue as to whether the decree for specific performance is obtained by collusion 16..sa.49.2023 Judgment.odt 6 need not be gone into. It is undisputed that the agreement of sale dated 16.05.2000 is not a registered agreement. It is also not in dispute that the present appellant was not placed in possession of the suit property pursuant to the said agreement. It must be stated that the agreement of sale is subsequent to the registered sale deed dated 02.02.2000 which was admittedly executed by the respondent No.3 in favour of Mr. Vasant Kothari who has sold the said property to Mr. Manish Mishra from whom the appellant purchased the same. Although the sale deed of Mr. Mishra and the appellant are lis pendens sale deeds, the sale deed of Mr. Vasant, the first purchaser is not lis pendens transaction. The sale deed is executed much before the institution of the suit and also prior to execution of agreement of sale dated 19.05.2000. Since the defendant in the suit for specific performance was not owner of suit property as on the date of institution of suit, the sale transactions subsequent to filing of suit will not be subject to lis pendens. 9. It will be pertinent to mention that the appellant has now come up with a contention that initially the appellant and respondent No.3 had entered into agreement of sale on 08.12.1999. However, the judgment in the suit for specific performance does not refer to the agreement of sale deed dated 08.12.1999. The decree is 16..sa.49.2023 Judgment.odt 7 passed for specific performance of agreement dated 19.05.2020, which is subsequent to the sale deed dated 02.02.2000 executed by the respondent No.3. Prior registered sale deed dated 02.02.2000 will obviously prevail over subsequent registered agreement of sale deed dated 08.12.1999. Assuming the contention of the agreement of sale being executed initially on 08.12.1999 to be proved, since the alleged agreement is not a registered document and the appellant was admittedly not put in possession of the suit property pursuant thereto, the appellant cannot contend that respondent Nos. 1 and 2 or their predecessor in title had constructive notice of the alleged agreement. There is no evidence on record to infer positive knowledge of the alleged prior agreement. In view of the aforesaid, it is obvious that a registered document of sale deed will prevail over prior unregistered agreement. 10. Having regard to the aforesaid legal position, in the considered opinion of this Court, no substantial question of law is arises for consideration in the second appeal. Second Appeal is therefore dismissed with no order as to costs. (ROHIT W. JOSHI, J.) C.L. Dhakate