-SA-131-2026.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 131 OF 2026 WITH INTERIM APPLICATION NO. 2001 OF 2026 Madni Rashida S Abbas (Deceased) Through Legal Heirs 1a Syed Aamir Madni and Ors ..Appellants Versus Leena Francis D’Souza Through Her Constituted Attorney Yusuf A Khan …Respondent Ms Tooba R Momin, for the Appellants. CORAM: N. J. JAMADAR, J. DATE : 17th JUNE 2026 ORDER: 1. Heard the learned Counsel for the Appellants. 2. This Second Appeal is directed against a judgment and decree dated 7th January 2026 passed by the learned Principal District Judge, Thane, whereby the Appeal preferred by the Appellant against an ex- parte judgment and decree passed on 1st January 2019 in RCS No. 609 of 2016, thereby declaring that the Respondent-Plaintiff was the owner of the suit premises and directing the Appellant-Defendant to hand over peaceful, vacant possession of the suit premises and also pay monthly compensation at the rate of Rs.2000/- to the Plaintiff till the delivery of possession of the suit premises to the Plaintiff, came to be dismissed. ARS 1/3 ARUN RAMCHANDRA SANKPAL Digitally signed by ARUN RAMCHANDRA SANKPAL Date: 2026.06.18 19:54:26 +0530 -SA-131-2026.DOC 3. The learned District Judge, upon appraisal of the material and evidence on record, found that the reasons ascribed by the Appellant- Defendant for not participating in the proceedings in the suit before the trial Court, whilst it was not in contest that the suit summons was duly served on the Defendant, were unworthy of acceptance. The contention of the Defendant that she came to know about the passing of the decree only upon being served with the notice of the execution proceeding in the year 2025, when the decree was passed in the year 2019, was unworthy of credence. On the merits of the matter, the learned District Judge was of the view that the Defendant failed to make out a contestable claim in as much as the best case of the Defendant was that there was an oral Agreement for Sale of the suit premises and the Defendant had not taken any steps to seek specific performance of the contract, although it was contended that the Plaintiff had repeatedly threatened to dispossess the Defendant. 4. The aforesaid view of the learned District Judge appears impeccable. Incontrovertibly, the sub-stratum of the Defendant’s case was that the suit premises was verbally agreed to be sold to the Defendant in the year 2007. Despite accepting substantial consideration, the Plaintiff did not complete the transaction of sale and execute the instrument. It is not the case of the Defendant that she had taken steps to seek specific performance of the oral Agreement till the ARS 2/3 -SA-131-2026.DOC institution of the suit. Since the defence of the Defendant was that of an oral Agreement for Sale, the Defendant was not entitled to claim protection of possession by invoking the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882. 5. In contrast, there was material to indicate that, initially the Defendant was inducted as a licensee under the Leave and License Agreement dated 1st March 2007 and subsequently there was an oral Agreement for Sale, and in view of the purported failure of the Defendant to perform the oral Agreement for Sale to purchase the suit premises, a Memorandum of Understanding was executed on 18th July 2007 cancelling the said Agreement for Sale. 6. In the aforesaid view of the matter, the learned District Judge was justified in returning a finding that the Defendant failed to make out a contestable claim and, therefore, did not deserve an opportunity to contest the suit by setting aside the ex-parte decree. 7. Thus no question of law, much less a substantial question of law, arises for consideration. 8. The Second Appeal stands dismissed. 9. In view of the dismissal of the Second Appeal, the Interim Application also stands disposed. [N. J. JAMADAR, J.] ARS 3/3