SHRI. SAMPATRAO RAMCHANDRA KADAM and ANR.versusARUN VIRUPAKSHA KHALIPE and ANR.

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIRCUIT BENCH AT KOLHAPUR
                                     CIVIL APPELLATE JURISDICTION

VAIBHAV
RAMESH
                                      SECOND APPEAL NO. 735 OF 2022
JADHAV
Digitally signed by
VAIBHAV RAMESH
JADHAV
                                                   WITH
                                     CIVIL APPLICATION NO.130 OF 2022
Date: 2026.06.16
10:44:18 +0530




                                                    IN
                                      SECOND APPEAL NO. 735 OF 2022

                      1.    Sampatrao Ramchandra Kadam
                            Age:58 yrs, Occ:Agri. & Business
                            R/at: Ubhi peth, Mauli building,
                            Vita, Tal: Khanapur, Dist: Sangli

                      2.    Dipak Shankar Kadam
                            Age: 43 yrs, Occ: Agriculture
                            R/at: Ghumatmal, Vita,
                            Tal: Khanapur, Dist: Sangli              … Appellants

                                 VERSUS

                      1.    Arun Virupaksha Khalipe
                            Age: 64 yrs, Occ: Business

                      2.    Sudhir Virupaksha Khalipe
                            Age: 39 yrs, Occ: Business
                            Both R/o: C/o. Dhanishta Kirana Stores,
                            Behind Swimming Tank,
                            Ganeshnagar, Sangli
                            Tal: Miraj, Dist: Sangli                … Respondents

                      Mr. Avinash B. Patil, Advocate for the appellants.
                      Mr. Amit Sale with Mr. Abhijit Pasale, Advocate for the
                      respondents.




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                   CORAM : SMT. VIBHA KANKANWADI, J.

                   DATED    : JUNE 12, 2026
JUDGMENT.:

1.    The present Second Appeal has been filed by the original

plaintiffs to challenge the judgment and decree passed by the

learned District Judge-3, Sangli in Regular Civil Appeal No.182 of

2014 on 6th March 2019, thereby allowing the appeal filed by the

present respondents-original defendants and dismissing the suit

filed by the present appellants, i.e., Regular Civil Suit No.163 of

2010, which had been decreed by the learned Joint Civil Judge,

Junior Division, Vita on 2nd May 2014. The suit was filed for

specific performance of the contract.


2.    The appellants-original plaintiffs had come with the case that

the immovable property bearing Revisional Survey No.770 of

Kasbe Vita, Taluka Khanapur, District Sangli originally belonged to

the father of the defendants, namely, Virupaksha Khalipe. He had

intended to sell the said property because of his personal need.

The father of plaintiff No.1 and the uncle of plaintiff No.2 agreed

to purchase the suit property, and the father of the defendants

entered into an agreement to sell on 30th October 1977. The

earnest amount of Rs.1,000/- was paid at that time. It is the



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contention of the plaintiffs that the possession of the suit property

was also handed over on the date of the agreement to sell to the

father of plaintiff No.1 and the uncle of plaintiff No.2. It was also

agreed that the father of the defendants would seek the requisite

permission from the District Collector before the execution of the

sale deed and, by issuing one month's advance notice thereafter,

would execute the sale deed in favour of the father of plaintiff

No.1. The plaintiffs contend that Virupaksha Khalipe failed to give

the notice as agreed and failed to execute the sale deed. Therefore,

the plaintiffs issued a notice to the defendants on 17th September

2010. According to the plaintiffs, they have the right to get the sale

deed executed in their favour. In spite of receipt of the said notice,

when the defendants failed, the suit for specific performance of the

contract was filed.


3.    Notice was issued to the defendants. They filed a written

statement at Exhibit–‘19’. They have admitted the fact that the

property belongs to their father, but the rest of the contentions

have been specifically denied. It has been contended that the suit

property is an inam land and, therefore, prior sanction of the

District Collector was necessary before execution of the sale deed.




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They specifically denied that their father had executed any such

document on 30th October 1977 or had received the earnest

amount. They contend that the suit property is in possession of

their father and that after the demise of their father on 27th July

1992, the property is in their possession after Mutation Entry

No.36344 was effected.


4.    Taking into consideration the rival contentions, the learned

Trial Court framed the issues. The plaintiffs have led oral as well as

documentary evidence; however, the defendants declined to

adduce any evidence, either oral or documentary, by filing pursis

at Exhibit–48.


5.    The learned Trial Court held that the plaintiffs had proved

that the father of the defendants had executed the agreement to

sell dated 30th October 1977 in favour of the predecessors of the

plaintiffs and had received the earnest amount. The defendants’

father committed breach of the contract and further held that the

plaintiffs were ready and willing to perform their part of the

contract and were therefore entitled to get specific performance.


6.    The original defendants, being aggrieved by the said

judgment and decree, filed Regular Civil Appeal No.182 of 2014



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and, after hearing the appellants only, the learned First Appellate

Court reversed the findings. It was noted that despite receipt of

notice of the appeal, the respondents, i.e., the original plaintiffs,

remained absent and, as per the order dated 10th November 2014,

the appeal proceeded ex parte against them. The First Appellate

Court held that the plaintiffs had failed to prove that Virupaksha

Khalipe had executed an agreement to sell the suit land on 30th

October 1977 in favour of the predecessors of the plaintiffs. It has

also been held that the plaintiffs had failed to prove that they were

ready and willing to perform their part of the contract, and it

proceeded to allow the appeal and dismiss the original suit by

judgment and decree dated 6th March 2019, and thus the original

plaintiffs are before this Court.


7.    Heard Mr. Patil, learned Advocate for the appellants, and Mr.

Sale, learned Advocate for the respondents.


8.    It has been vehemently submitted on behalf of the original

plaintiffs that the findings of the Trial Court are legal and correct.

The plaintiffs had adduced both oral and documentary evidence in

support of their contentions. Plaintiff No.1 has examined himself

at Exhibit–24, and to prove the agreement to sell dated 30th




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October 1977, the son of the scribe has been examined. So also in

order to prove another document dated 20th November 1979,

which relates to payment of further amount, PW-2 Balwant, son of

the scribe, has also been examined. The testimony of both these

witnesses has been considered by the learned Trial Court, and it

has been held that the document is proved in view of Section 90 of

the Indian Evidence Act, 1872 (hereinafter referred to as “the

Evidence Act”). The presumption has been rightly invoked, as

Section 90 of the Evidence Act prescribes that where any

document, purporting or proved to be thirty years old, is produced

from any custody which the Court in the particular case considers

proper, the Court may presume that the signature and every other

part of such document, which purports to be in in the handwriting

of any particular person, is in that person’s handwriting. The

presumption arose, however, to the extent that, in the case of a

document executed or attested, it was duly executed and attested

by the person who purports to have executed and attested it, when

the custody of such document is proved to be more than thirty

years old.


9.    The learned First Appellate Court was wrong in holding that




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the contents of the documents had not been proved, though the

son of the scribe had identified the handwriting and the signature

of his father. It has been further submitted on behalf of the

appellant that the defendants have not entered the witness box

and have not adduced any evidence. Therefore, an adverse

inference ought to have been drawn. Further, in view of the

contents of the written statement, especially paragraph No.9, the

First Appellate Court ought to have considered that the execution

of the document was admitted by the defendants when it was

contended that no action was taken by the father of plaintiff No.1

and the uncle of defendant No.2 during their lifetime, and

therefore, it will have to be presumed that the execution of the

document was not for its implementation. The defendants then

had put forward their own story stating that Virupaksha Khalipe

settled at Sangli in 1979 and, therefore, if any, document would

have been got executed from Virupaksha Khalipe. The earnest

amount was returned in 1980. No evidence has been adduced to

support the said contentions. When the presumption under

Sections 90 and 114 of the Evidence Act was in favour of the

plaintiffs, the First Appellate Court ought to have dismissed the

appeal. The substantial questions of law are, therefore, arising in



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the present matter.


10.   Before turning to the assessment, the legal position in

respect of Section 100 of the Code of Civil Procedure, 1908, is

required to be considered. As per the law laid down by the Hon’ble

Supreme Court in a catena of decisions, the jurisdiction of the

High Court to entertain a Second Appeal under Section 100 of the

CPC, after the 1976 amendment, is confined only to cases

involving a substantial question of law.


11.   Reliance can be placed on the decision in Ishwar Dass Jain

vs. Sohan Lal reported in (2000) 1 SCC 434, wherein it has been

observed that -

          “Under Section 100 CPC, after the 1976 amendment, it is
          essential for the High Court to formulate a substantial
          question of law and it is not permissible to reverse the
          judgment of the first appellate court without doing so.
          There are two situations in which interference with
          findings of fact is permissible.    The first one is when
          material or relevant evidence is not considered which, if
          considered, would have led to an opposite conclusion. The
          second situation in which interference with findings of fact
          is permissible is where a finding has been arrived at by the
          appellate court by placing reliance on inadmissible
          evidence which if it was omitted, an opposite conclusion
          was possible.     In either of the above situations, a
          substantial question of law can arise.”




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12.   Therefore, taking into consideration the observations in the

above said case and also on the decision in Kondiba Dagadu

Kadam vs. Savitribai Sopan Gujar reported in (1999) 3 SCC 722),

wherein it has been held that -


          “In a Second Appeal under Section 100 of CPC, the High
          Court cannot substitute its own opinion for that of the First
          Appellate Court, unless it finds that the conclusions drawn
          by the lower Court were erroneous being :

          (i)      Contrary to the mandatory provisions of the
          applicable     law;
           OR
          (ii)     Contrary to the law as pronounced by the Apex
          Court;
           OR
          (iii)    Based on in-admissible evidence or no evidence.”

13.   Taking into consideration the aforesaid decisions of the

Hon’ble Supreme Court, it can be said that unless it is shown by

the appellant in the Second Appeal that substantial questions of

law are involved, the appeal cannot be admitted and considered.

The memo of appeal in the present Second Appeal does not

specifically state or set out any substantial question of law. It

cannot then be stated that it is only the duty of the Court to

formulate such substantial questions of law; however, a liberal

interpretation can be adopted and, only on this technical ground,



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the Second Appeal need not be dismissed. But the fact and position

of law remains that unless it is shown that substantial questions of

law arise, this Court cannot proceed with the matter.


14.   Here the plaintiffs are taking advantage of Section 90 of the

Evidence Act and submit that the agreement dated 30th October

1977 was proved by them through PW-2 Balwant, the son of the

scribe. From the documents on record and the pleadings, it can be

considered that the plaintiffs intended to state that, by way of the

agreement dated 30th October 1977, even the possession of the

property was handed over by Virupaksha to the predecessors of the

plaintiffs. The question then arises as to whether, when the value

of the immovable property was more than Rs.100/- and possession

was allegedly handed over, the document ought to have been

registered. Admittedly, the said document dated 30th October

1977 is not a registered instrument. Since it has been considered

as an agreement to sell, the law as it stood in the year 1977 will

have to be considered, and then the proof of that document will

have to be examined as to whether it is required to be proved

under Section 68 of the Evidence Act, which pertains to proof of

execution of documents required to be attested, or under Section




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72, which deals with proof of documents not required to be

attested. Even if I consider the fact that in the year 1977, even if

possession was handed over, the agreement to sell was not a

compulsorily registrable document; yet, in view of Section 72 of

the Evidence Act, an attested document not required by law to be

attested may be proved as if it was unattested. Here both the

documents, i.e., dated 30th October 1977 and 20th November

1979, are attested documents, but instead of examining the

attesting witness, the plaintiffs have preferred to examine the son

of the scribe. It was, therefore, specifically asked as to whether the

attesting witness to the document, especially the document dated

30th October 1977, was alive. Learned Advocate for the appellant

submits that he was alive when the evidence was adduced.

Therefore, when the attesting witness was alive, he ought to have

been examined, and the plaintiffs were not justified in relying on

the presumption under Section 90 of the Evidence Act. Although

the presumption under Section 90 of the Evidence Act is available

in respect of a document which is more than thirty years old, yet it

is a limited presumption. At the most, it can be presumed that the

said document is coming from the custody of a proper person, but

as regards its contents, they are required to be proved separately. I



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would like to rely upon the judgment of the Hon’ble Supreme

Court in the case of Union of India (UOI) vs. Ibrahim Uddin &

Anr., reported in (2013) AIR (SCW) 2752, wherein it has been

held that the contents must be proved separately.


15.   At the cost of repetition, it can be said that when there is no

explanation by the plaintiffs for not examining the attesting

witness, the learned Trial Court was not justified in relying on the

presumption under Section 90 of the Evidence Act.


16.   It is then tried to be submitted that defendant No.1 is the

signatory to the document dated 20th November 1979 and, taking

into consideration the contents of the written statement, the onus

had shifted to the defendants to disprove the same. Here, it is to be

noted that unless the plaintiffs discharge their burden, the onus

does not shift to the defendants. In his examination-in-chief, PW-1

Sampat, who is plaintiff No.1, has not stated in specific terms that

he was present at the time of execution of the said document or

documents. Under such circumstances, there ought to have been

some person to state that he had seen the signatories to the

documents signed. PW-3 Shrikant appears to be the son of the

attesting witness, and he has stated that his father’s health




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condition is not proper and that, due to his age, his mental and

physical condition is not proper. He has then identified the

signature of his father; however, while assessing his testimony, it

can be seen that he has not produced any document to support his

contention that the mental and physical condition of his father is

not proper, and that he would be unable to answer rational

questions that would be put to him, or that his memory had failed

due to age. Thus, taking into consideration the facts and the

evidence from all angles, it can certainly be said that the learned

Trial Court erred in invoking the presumption under Section 90 of

the Evidence Act and, therefore, the learned First Appellate Court

was justified in reversing the findings to that effect.


17.   Another angle that is required to be considered is in respect

of due notice of the appeal. The present appellants, who were the

respondents before the First Appellate Court, failed to appear, and

the matter proceeded ex parte against them. Without giving any

reasonable ground for their absence, they cannot now criticize the

reasons given by the First Appellate Court for reversing the

judgment and decree. Of course, on the point of law, they may be

entitled to put forth their case, but not on the facts.




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18.   Another point in respect of readiness and willingness to

perform their part of the contract is concerned, I am of the opinion

that the learned First Appellate Court has rightly considered that

the predecessor of the plaintiffs had not taken any action during

their lifetime and there is no explanation for the same in the

testimony of PW-1 Sampat. No doubt, even for the sake of

arguments, I take note one of the conditions put for execution of

the sale deed was to obtain the necessary permission from the

District Collector, then it was the equal duty on the part of the

predecessor of the plaintiffs to see that a proper application was

made within a reasonable time to obtain such approval or

sanction. The cross-examination of PW-1 Sampat would show that

he was aged 16 to 17 years when the document was executed. He

admits that the land was inam land and that it was necessary to

obtain the requisite permission. He claims ignorance in respect of

the fact as to whether his father had given any notice to the

predecessors of the defendants during his lifetime. His father

expired in the year 2000, and the father of the defendants expired

20 to 25 years prior to his deposition. He admits that since the

death of his father, i.e., in 2000, till 2010, they had not issued any

notice to the defendants. Under such circumstances, it cannot be



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stated that the plaintiffs had readiness and willingness to perform

their part of the contract. Even if we brush aside the point as to

whether the time of performance of the contract has been

considered by the Trial Court or not, the fact remains that from

1977 till 2010, i.e., when the suit was filed, there is a long lapse of

time, and it cannot be stated that any action was taken by the

plaintiffs within a reasonable time. Therefore, taking into

consideration the law point as well as factual aspects surrounding

the law, I am of the opinion that no substantial question of law

arises in this matter and the appeal deserves to be dismissed.


19.   Accordingly, the Second Appeal stands dismissed. No order

as to costs.


20.   In view of the disposal of the Second Appeal, the Civil

Application also stands disposed of.




                                    (SMT. VIBHA KANKANWADI, J.)




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