MADNI RASHIDA S ABBAS DECEASED THROUGH HEIRSversusLEENA FRANCIS D D SOUZA THROUGH HER CONSTUTED ATTORY YUSAF A KHAN

                                                                                   -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                     ..Appellants
                      Legal Heirs 1a Syed Aamir Madni and Ors
                            Versus
                      Leena Francis D’Souza Through Her Constituted             …Respondent
                      Attorney Yusuf A Khan

                      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-
ARUN
RAMCHANDRA
SANKPAL               parte judgment and decree passed on 1 st January 2019 in RCS No. 609
Digitally signed by
ARUN RAMCHANDRA
SANKPAL
Date: 2026.06.18
19:54:26 +0530
                      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.

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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


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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 18 th 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.]


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