43 sa467-20.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 467 OF 2020 Kacharu Gabaji Shinde ... Appellant. Versus Dagadu Sukhdeo Katore and Ors. ... Respondents. ————— Mr. Surel Shah, Senior Advocate i/by Mr.Sachin Gite, Advocate for Appellant. ————— Coram : Sharmila U. Deshmukh, J. Date : November 27, 2025 P.C. : 1. Second Appeal has been preferred by the original Plainti- challenging the concurrent .ndings of the Trial Court and the First Appellate Court. 2. Special Civil Suit No.494 of 2013 was preferred by the Plainti- seeking speci.c performance of the agreement of sale in respect of the land admeasuring 79 R out of Gat No.459, situated at district Nashik. The Plainti- came with the case that the Defendant Nos.1 and 2 are real brothers and Defendant No.3 is the son of Defendant No.1. The Defendant Nos.1 and 2 were the owners of property bearing Gat No.459 totally admeasuring 4 H 9 R and had agreed to sell land admeasuring 1 H 86 R to the Plainti-. Out of the said land, 79 R land which is the suit property was reserved for rehabilitation of Mukane sa_mandawgad 1 of 7 2025:BHC-AS:52009 43 sa467-20.odt dam project a-ected person. 39 R land belongs to Defendant No.1 and 40 R land belongs to Defendant No.2. 3. Insofar as the land excluding the suit land 79 R is concerned, an agreement was executed on 1st January, 1993 and in Clause 17 of the said agreement, it was agreed that Defendant Nos.1 and 2 will sell the suit property to the Plainti- upon de-reservation of the property in future. As dispute arose between the parties, the Plainti- .led Special Civil Suit No.277 of 1994 for speci.c performance of the agreement for sale dated 1st January, 1993 which came to be decreed and the sale deed came to be executed. On 3rd August, 2000, the Defendant No.1 executed registered sale deed in favour of the Plainti- for Gat No.458 and land admeasuring 61 R out of land admeasuring 1 H 7 R of Gat No.459. As Defendant No.2 failed to execute the sale deed of his share of land, the Court Commissioner came to be appointed and the deed was executed. It was further pleaded that on 4th August, 2000, the Defendant No.1 executed one agreement receipt in favour of the Plainti- for sale of his share i.e. 40 R land out of the suit property. The Plainti- averred that he was ready and willing to perform the agreement and that the Defendant Nos.1 and 3 have sold the suit property to the Defendant No.4 and 5 illegally. It was the Plainti-s’ case that the suit property was released from reservation on 15th December, 2012, as per the order of the Sub sa_mandawgad 2 of 7 43 sa467-20.odt Divisional O@cer and that the sale deed executed in favour of the Defendant Nos.4 and 5 was invalid and not binding on him. 4. The suit came to be resisted by Defendant Nos.1 to 3. According to them, the agreement for sale of the land under reservation was not concluded contract. It was further contended that the suit property was released from reservation in the year 1994 and after lapse of 19 years, the present suit has been .led. Hence, the suit is barred by limitation. It was further pleaded that there is vast di-erence in the consideration amount as alleged by the Plainti-. 5. The Trial Court framed the necessary issues and answered all the issues against the Plainti- and dismissed the suit. As against this, the Plainti- .led appeal being Civil Appeal No.55 of 2017. The First Appellate Court framed the necessary issues for determination and answered the issue of readiness and willingness against the Plainti- as also the issue of execution of agreement by Defendant No.1 and 3 for area of 40 R in the negative. 6. The First Appellate Court re-appreciated the evidence on record and held that the Plainti- in his cross-examination could not say that his .nancial condition was sound, that he could not recollect what was the agreed sale price with respect of the suit property. The First Appellate Court noted that the Plainti- has deposed that after sa_mandawgad 3 of 7 43 sa467-20.odt removal of reservation the amount of consideration was to be paid and held that the consideration has not been paid and the amount paid was in respect of the earlier sale deed and not in respect of the suit property. 7. On the aspect of the readiness and willingness the First Appellate Court has considered that the Plainti- had not inquired about the removal of the reservation till the year 2012. The First Appellate Court held that the contract of 4th August, 2000 was contingent contract and there is no evidence to show that the Plainti- had that much amount on the date of agreement. The First Appellate Court further held that the property was in the reservation in 1993 and it was removed from the reservation on 5th May, 1994 and there is an admission of the Plainti- that he has not taken any steps to know as to whether the property is within reservation or not from 1994 to 2012 and considering the absence of any steps for merely 19 years, the First Appellate Court answered the issue of readiness and willingness against the Plainti-. 8. On the aspect of limitation the First Appellate Court held that the agreement of 2000 did not .x any date for performance of contract and upon the breach of contract the period of limitation would start from the date of knowledge and not from the date of sa_mandawgad 4 of 7 43 sa467-20.odt agreement. 9. Mr. Shah, learned Senior Advocate appearing for the Appellant would submit that the First Appellate Court after having held that the suit was not barred by limitation ought to have considered the aspect of readiness and willingness in that context. He would submit that the property was under reservation in 1993 and there was no information given to the Plainti- as regards the removal of the reservation. He submits that as the Plainti- was not aware of removal of reservation has been accepted by the First Appellate Court when it answers the issue of limitation in favour of the Plainti-. The readiness and willingness ought not to have answered against the Plainti- as the Plainti- had no knowledge about the removal of the reservation till the year 2012. He submits that the .nding of the First Appellate Court su-ers from perversity giving rise to a substantial question of law. 10. I have considered the submissions and perused the judgment of the Trial Court as well as the First Appellate Court. 11. Apart from the issue of limitation, the First Appellate Court has also framed the necessary issue as regards the readiness and willingness of the Plainti- to be answered while exercising the discretionary equitable jurisdiction of grant of speci.c performance of contract. It is well settled that speci.c performance is not to be sa_mandawgad 5 of 7 43 sa467-20.odt granted only because it is lawful and the discretion is required to be exercised by taking into consideration all facts and circumstances. In the year 1993, the agreement came to be executed in respect of part of the Gat No.459 with the an agreement to enter into an agreement for sale of 79 R land upon the property being de-reserved. Even if, the issue of limitation is answered in favour of the Plainti-, the fact that the reservation was removed in the year 1994 and the suit has been .led after merely 19 years militates against grant of speci.c performance. The Plainti- has admitted that he has not taken any steps to know whether the suit property is under reservation or not from 1994 to 2012. The admission would in fact show total inaction on part of the Plainti- and would not demonstrate willingness which is referable to the conduct of the Plainti-. It would be inequitable to grant speci.c performance of contract after lapse of 19 years, when the Plainti- has shown total inaction and has not even bothered to address any communication to the Defendants inquiring about de- reservation of the suit property. The evidence shows that the suit property was de-reserved in the year 1994 and not in the year 2012 as claimed by Plainti-. This Court is also unable to .nd any plea that the Plainti- became aware of de-reservation in the year 2012. 12. Considering that for a period of merely 19 years, no steps have been taken by the Plainti-, the First Appellate Court has applied the sa_mandawgad 6 of 7 43 sa467-20.odt correct principle of law while declining to grant the discretionary relief of speci.c performance. No perversity is demonstrated from .ndings of the First Appellate Court. No substantial question of law arises. 13. Second Appeal stands dismissed. 14. Civil/Interim Application, does not survive for consideration and same dismissed. [Sharmila U. Deshmukh, J.] sa_mandawgad 7 of 7 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 29/11/2025 11:16:08