GURUNATH BABRUBAN PADULKARversusSUSHILABAI ANGAD PANDHARE

2026:BHC-AUG:2432


                                                                914.SA-411-2025.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                              SECOND APPEAL NO. 411 OF 2025

                             GURUNATH BABRUBAN PADULKAR
                                         Versus
                              SUSHILABAI ANGAD PANDHARE

                                             *****
                    * Advocate for the Appellant : Mr. P.D. Sangvikar
                                            *****
                                     CORAM      : MEHROZ K. PATHAN, J.
                                       DATE    : 17th JANUARY 2026


            ORDER:

            1.      The Second Appeal is filed by the Appellant challenging the
            judgment dated 07.09.2017 passed by the District Judge-1,
            Osmanabad in Regular Civil Appeal No.17/2011, whereby the
            Appellate Court dismissed the appeal against the judgment and
            decree dated 14.12.2004 passed by the 3rd Joint Civil Judge,
            Osmanabad in RCS No.156/2004.


            2.      Plaintiff had filed R.C.S. No.156/2004 before the Civil Judge,
            Junior Division, Osmanabad seeking relief for Specific Performance
            of Contract and in alternative recovery of Rs.50,000/-.


            3.      It was contended by the Plaintiff before the trial Court that
            defendant is her relative. In the month of June-2001, defendant
            was in need of Rs.50,000/- for his house expenditure. Therefore,
            defendant     approached    to   her     and   demanded     amount        of
            Rs.50,000/-. The defendant kept a proposal to sale his land to her.

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On 13.06.2001 defendant executed agreement to sale in her favour
in respect of land Gat No.111 admeasuring 0-H 66-R land situated
at village Lasona, Tq. and Dist. Osmanabad (hereinafter referred to
as ‘suit property’ for the sake of brevity) which is bounded as
under:
Towards East    : Land of Ashok Pawar.
Towards West    : Land of Angad Padalkar
Towards South : Land of Narayan Nagu Padalkar
Towards North   : Land of Babruwan Gena Padalkar



4.   It was further contended by the Plaintiff that Defendant
agreed to sale the suit property for consideration of Rs.70,000/-.
On 13.06.2001, she paid Rs.50,000/- to the defendant as an
earnest money before the panch. Defendant accepted the amount
and executed agreement to sale on stamp of Rs.100/- in her favour.
She assured to give remaining amount of Rs.20,000/- at the time
of execution of sale deed and defendant promised to execute the
sale deed after receiving of remaining amount.



5.   It was further contended by the Plaintiff that in the year
2002, on the day of Gudipadwa she approached to the defendant
and asked to execute sale deed as per agreement. The defendant
showed his personal difficulty and he avoided to execute sale deed
and promised to execute the sale deed in the year 2003. Defendant
failed to execute the sale in the year 2003. After festival of
Gudipadwa 2003, she again approached to the defendant and
asked defendant to execute sale deed but the defendant avoided to
execute sale deed on one and other pretext.


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6.    The Plaintiff therefore issued a notice to the Defendant
through her advocate on 06.02.2004. The Defendant accepted the
notice but failed to reply, thereby denying the execution of the sale
deed. Consequently, the Plaintiff filed the present civil suit for
specific performance. The Defendant entered appearance and
denied    that    he    had     approached       the    Plaintiff,   demanded
Rs.50,000/-, or agreed to sell his land to the Plaintiff. He further
denied the execution of the agreement dated 13.06.2001 for
consideration of Rs.70,000/-, as well as the receipt of Rs.50,000/-
as earnest money and the execution of any sale agreement.


7.    The learned trial Court framed issues and answered them,
thereby decreeing the suit with costs and directing the Plaintiff to
deposit the remaining amount of Rs.20,000/-. A further direction
was issued to the Defendant to execute the sale deed of the suit
land in favour of the Plaintiff. The relevant issues framed and
answered by the trial Court are as under :
Sr. No. Issues                                              Findings
   1    Does Plaintiff prove that Defendant had agreed to In affirmative
        sell the suit property to Plaintiff and executed
        agreement to sell dated 13.06.2001?
   2    Does Plaintiff prove that he paid Rs.50,000/- as     In affirmative
        earnest money to Defendant on 13.06.2001?
   3    Does Plaintiff prove that he is ready and willing to In affirmative
        perform his part of contract?
   4    Does Defendant prove that Plaintiff is doing         In negative
        money lending business without license?
   5    Does Defendant prove that he had availed loan of In negative
        Rs.20,000/- from Plaintiff for purchase of land or
        interest?



8.    The Appellant, being the sole Defendant, has therefore filed
an appeal challenging the judgment and decree dated 14.12.2010


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before the learned District Judge, Osmanabad, registered as
Regular Civil Appeal No.17/2011.


9.    The Appellate Court, after considering the evidence led by
both the Plaintiff and the Defendant, framed the following issues :
Sr. No.                        Issues                             Findings
   1    Does Plaintiff prove that Defendant had agreed to         Affirmative
        sale the suit property as per agreement to sale
        dated 13.06.2001?
   2    Does Plaintiff prove that she paid Rs.50,000/- as         Affirmative
        earnest money to the Defendant on 13.06.2001?
   3    Does Plaintiff prove that she was and is ready            Affirmative
        and willing to perform her part?
   4    Does Defendant prove that he had obtained loan            Negative
        of Rs.20,000/- from the Plaintiff and he has fully
        satisfied said amount?
   5    Does Defendant prove that Plaintiff had forged            Negative
        and fabricated blank stamp paper of Rs.100/-
        and used it for agreement to sale dated
        13.06.2001?


.     Thus, after considering the evidence led by the Plaintiff as
well as the Defendant, the appeal came to be dismissed with costs.



10.   The learned Counsel for the Appellant submits that the
substantial questions of law involved in the present appeal are as
under :
(A)   What decree of proof is required to prove agreement to sale is
      executed ?

(B)   Whether mere admission of signature on document amounts
      to admission of contents of document in?

(C)   Whether discretionary relief of specific performance can be
      granted in case where genuiness of agreement to sale itself is
      in the shadow of doubt?


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11.   I have heard the learned Counsel for the Appellant and have
also perused the judgment dated 14.12.2010 passed by the 3rd
JMFC, Osmanabad in RCS No.156/2004, as well as the judgment
dated 07.09.2017 passed by the District Judge-1, Osmanabad in
RCA No.17/2011. The Plaintiff has relied upon the agreement to
sell dated 13.06.2001 executed on a stamp paper of Rs.100 in
favour of the Plaintiff, whereby the Plaintiff paid an amount of
Rs.50,000/- to the Appellant, with an assurance that the Appellant
shall pay the remaining balance of Rs.20,000/- at the time of
execution of the sale deed, and upon receipt of the said balance,
the Defendant shall execute the sale deed. In order to prove the
said agreement to sell dated 13.06.2001, the Plaintiff examined
herself and one witness, Ashok (Exhibit-45), who deposed that the
Defendant was in need of Rs.50,000/- for family expenditure and
therefore approached the Plaintiff and agreed to sell land bearing
Gut No.111 for a total consideration of Rs.70,000/-, out of which
Rs.50,000/- was paid by the Plaintiff as earnest money to the
Defendant.
.     The cross-examination of PW-2/Ashok Pawar, did not yield
any favourable admissions. On the contrary, the testimony of the
Defendant corroborated the version of PW-1, and accordingly the
learned trial Court answered Issue No.1 in favour of the Plaintiff.
Thereafter, the Plaintiff examined PW-3 at Exhibit-66, who was the
stamp writer, to prove the conditions of the agreement to sell dated
13.06.2001. PW-3 deposed that the agreement was written by him
and was read over to both the Plaintiff and the Defendant.
Thereafter, the Plaintiff and Defendant affixed their signatures on
the said stamp paper in the presence of Raghu Kumbhar and



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Angad Pandhare, who acted as attesting witnesses. Upon scrutiny
of the evidence of PW-1, PW-2, and PW-3, the learned trial Court
held that the agreement to sell dated 13.06.2001 was duly proved,
under which the Plaintiff had paid an amount of Rs.50,000/- to the
Defendant.


12.   On the contrary, the Defendant examined himself at Exhibit-
53 but failed to examine either of the witnesses, Raghu or Angad
Pandhare, in support of his defense. The Defendant therefore failed
to prove that the amount of Rs.20,000/- was taken in the presence
of Raghu, as alleged in his written statement. It was obligatory on
the part of the Defendant to examine the witness in whose
presence the said amount was allegedly paid. The learned trial
Court accordingly answered Issue No.4 in the negative and held
that the execution of the agreement to sell dated 13.06.2001 was
not a money-lending transaction. Consequently, the Court directed
the Plaintiff to pay the remaining balance amount of Rs.20,000/-
and further directed the Defendant to execute the sale deed in
respect of land bearing Gut No.111 situated at Lasona, Taluka
Osmanabad, within four months from the date of judgment.


13.   The Appellate Court considered in detail the pleas raised by
both the Plaintiff and the Defendant. It noted that the Plaintiff had
examined PW-1, PW-2, and PW-3 in support of his claim to prove
the agreement dated 13.06.2001, and found that the Plaintiff had
paid an amount of Rs.50,000/- as earnest money, with the
remaining amount to be paid at the time of execution of the sale
deed. The Appellate Court therefore answered Issue No.1 in the



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affirmative and Issue No.4 in the negative, holding that the
Defendant had failed to examine the witness Raghu, in whose
alleged presence the Defendant claimed to have handed over
Rs.20,000/-. Accordingly, the Appellate Court rightly dismissed the
appeal.


14.   In view of the concurrent findings of fact by both the Courts
below, none of the substantial question of law raised by the
Appellant, as referred to hereinabove, call for any interference by
this Court under Section 100 of the Code of Civil Procedure.



15.   The learned Counsel for the Appellant has relied upon the
judgment of the Hon’ble Supreme Court reported in (2023) 11)
SCC 775 in the case of U.N. Krishnamurthy (Since Deceased)
Through Legal Representatives Vs. A.M. Krishnamurthy, in
support of his submissions. A perusal of the said judgment
shows that its ratio is that the Plaintiff must demonstrate
continuous readiness and willingness to pay the consideration
amount under the agreement to sell, which the Plaintiff is
required to prove regardless of any default by the original
Defendant. The finding of the trial Court on Issue No.3 clearly
shows that the Plaintiff was able to establish her readiness and
willingness to perform her part of the contract. The learned trial
Court observed that the agreement to sell was executed on
13.06.2001 and that Rs.50,000/- was paid. It further observed
that the notice issued to the Defendant on 06.02.2004 also
demonstrated the Plaintiff’s readiness and willingness to perform



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      the remaining part of the contract. Since Rs.50,000/- had
      already been paid, the Plaintiff proved her readiness and
      willingness to perform her part of the contract. The learned
      Appellate Court, in its judgment dated 07.09.2017, had also
      answered Issue No.3 in favour of the Plaintiff and observed that,
      as per Section 16 of the Specific Relief Act, the Plaintiff had
      proved that she was ready and willing to perform her part of the
      contract. The Plaintiff had already paid Rs.50,000/- and had the
      ability to pay the balance of Rs.20,000/- for execution of the sale
      deed, as could be seen from the notice dated 06.02.2004. Thus,
      there is a concurrent finding of fact regarding the Plaintiff’s
      readiness and willingness to perform her part of the contract.
      .    The aforesaid observations of the learned trial Court as
      well as the first Appellate Court, satisfies the requirement of the
      law laid down by the Hon’ble Supreme Court in favour of the
      Plaintiff. No other substantial question of law arises in the
      present appeal for consideration by this Court. The appeal is
      devoid of substance and merit and is accordingly dismissed with
      costs.



                                            [ MEHROZ K. PATHAN ]
                                                 JUDGE




Najeeb..




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