Bombay High Court
1) SHRI. KAMAL PANDU BHOPI THROUGH POA SMT. SULOCHANA KAMAL BHOPIversus1)SHRI. ARUN GOMA PATIL AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The Court held that the factual findings of the lower courts regarding the oral agreement, payment, and lack of plaintiff's readiness to perform were correct and that no substantial question of law existed, leading to dismissal of the appeals.
Summary
The case involved cross‑appeals concerning a 1965 oral agreement for the sale of a 0.06‑acre land parcel. The trial court found that the plaintiff had paid Rs.300 as part consideration and was in possession, but could not establish her readiness and willingness to perform the contract, leading to denial of specific performance and an order for refund with interest. The court also granted an injunction restraining the defendants from dispossessing the plaintiff, subject to due process. On appeal, the High Court affirmed that the trial court’s factual findings were based on evidence and that no legal error was made. It held that the defendants could seek possession through a fresh suit and that the appeals raised no substantial question of law, resulting in dismissal of both second appeals.
Issues considered
- Whether an oral agreement for the sale of land can be specifically performed.
- Whether the plaintiff proved readiness and willingness to perform her part of the oral contract.
- Whether the injunction restraining the defendants from dispossessing the plaintiff is legally valid.
- Whether any substantial question of law arises warranting interference with the lower courts' factual findings.
Subjects
- specific performance
- oral agreement
- sale of land
- adverse possession
- injunction
- possession
- contract readiness
- appeal dismissed
Judgment
2026:BHC-AS:36123
k 1/3 22 sa 417.17 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.417 OF 2017
Kamal Pandu Bhopi ....Appellant
V/S
Arun Goma Patil & Ors. ....Respondents
WITH
SECOND APPEAL NO.152 OF 2018
Arun Goma Patil & Ors. ....Appellants
V/S
Kamal Pandu Bhopi
since deceased through
his legal heirs and representatives
Krushnabai Kamal Bhopi & Ors. ....Respondents
_________
Mr. Sham Thakur a/w Mr. J.M. Joshi for Appellant in SA 417 of 2017 and
for Respondent in SA 152 of 2018.
Mr. Shirish V. Pitre for Respondent in SA 417 of 2017 and for Appellant in
SA 152 of 2018.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 1 SEPTEMBER 2026.
P.C.:
1. These are cross Appeals filed against the decree dated 27
November 2006 passed by the learned Civil Judge Senior Division, Alibag
in Special Civil Suit No.8 of 2002 as confirmed by the Lower Appellate
Court by the judgment and order dated 22 June 2016. The Suit was filed
for specific performance of oral Agreement for purchase of land
admeasuring 0H.06R. Admittedly, there is no written Agreement for the
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k 2/3 22 sa 417.17 as.doc
alleged purchase transaction. However, the Trial Court has held that the
Plaintiff was able to prove that the Defendants’ father had agreed to sale
the land to her for consideration of Rs.300/- in the year 1965. The Trial
Court has also upheld payment of consideration of Rs.300/- by the
Plaintiff to the father of the Defendants. The Trial Court has also held
that Plaintiff was put in possession of the suit land. However, upon
assessment of the evidence, the Trial Court has held that the Plaintiff
could not prove readiness and willingness to perform her part of the
contract. On this count, specific performance of the oral Agreement is
denied by the Trial Court. Strangely, Plaintiff raised claim of adverse
possession while claiming right of specific performance. The two pleas
are mutually exclusive. The Trial Court has rightly rejected both the
pleas. The Trial Court however has directed refund of amount of Rs.300/-
alongwith interest in favour of the Plaintiff. Since possession of the
Plaintiff is proved the Trial Court has restrained Defendant Nos.1 to 4
from dispossessing the Plaintiff without following due process of law.
The findings recorded by the Trial Court are concurrently upheld by the
first Appellate Court.
2. I have heard Mr. Pitre, the learned counsel appearing for the
Appellants in Second Appeal No.152 of 2018 and Mr. Thakur, the learned
counsel appearing for the Appellant in Second Appeal No.417 of 2017.
3. What is conducted by the Trial Court is a mere factual enquiry into
existence of oral Agreement for Sale and readiness and willingness of the
Plaintiff to perform such oral Agreement. After assessing the evidence
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on record though the Trial Court has ruled in favour of the Plaintiff
about existence of oral Agreement for Sale and payment of part
consideration of Rs.300/-, Trial Court could not record finding of
readiness and willingness on the part of the Plaintiff to perform her part
of the contract. Thus, factual findings are recorded by Trial Court by
assessing the evidence on record. The evidence is marshaled by the First
Appellate Court and the findings of fact are upheld. I find no reason to
interfere in the said concurrent findings in Second Appeal filed by the
Plaintiff.
4. Defendants are merely aggrieved by injunction granted by the
Trial Court in favour of the Plaintiff from dispossessing Plaintiff from
the suit property. However, this relief is subject to the caveat that
Defendants can always claim by possession of the suit property after
following due process of law. In my view, Defendants clearly committed
an error in not filing counter claim for claiming possession of the suit
property. Now also they are not deprived of remedy of recovery of
possession. They can institute a fresh suit for seeking back possession of
the suit property from the Plaintiff. So far as findings relating to
Plaintiff’s possession are concerned, the same are again fact based
findings not involving any question of law.
5. Considering overall conspectus of the case, I am of the view that
no substantial questions of law are involved in either of the Appeals.
Both the Second Appeals are accordingly dismissed.
(SANDEEP V. MARNE, J.)
katkam
Signed by: Sudarshan R. Katkam Page No. 3 of 3
Designation: PS To Honourable Judge
Date: 03/09/2026 11:36:59
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