final SA-174-2006.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.174 OF 2006

WITH

INTERIM APPLICATION NO.17520 OF 2022

WITH

CIVIL APPLICATION NO.1099 OF 2010

IN

SECOND APPEAL NO.174 OF 2006

Baburao Pandurang Kale

Age about 64 yrs, Occ. Agriculturist

Residing at Kalewadi, Taluka Haveli,

District Pune

…Appellant/

Applicant

Versus

Popat Mahadu Dabhade (Since Deceased)

Through his legal heirs,

1a. Balu Popat Dabhade

Age about 40 yrs, Occ. Agriculturist

Residing at Charholi Bk. (Kalewadi),

Taluka Haveli, District Pune.

1b. Kailas Popat Dabhade

Age about 35 yrs, Occ. Agriculturist

Residing at Charholi Bk. (Kalewadi),

Taluka Haveli, District Pune.

1c. Tanaji Popat Dabhade

Age about 32 yrs, Occ. Agriculturist

Residing at Charholi Bk. (Kalewadi),

Taluka Haveli, District Pune

1d. Suman Popat Dabhade (Since Deceased)

through legal heirs

Respondent Nos. 1a to 1c, 1e and 1f herein

1e. Radhabai Eknath Thakur

Age about 29 yrs. Occ. Household,

SQ Pathan/Arya Chavan 1/21

SHAGUFTA

QUTBUDDIN

PATHAN

Digitally

signed by

SHAGUFTA

QUTBUDDIN

PATHAN

Date:

2026.08.17

17:58:11

+0530

final SA-174-2006.doc

Residing at Charholi Bk. (Kalewadi),

Taluka Haveli, District Pune.

1f. Nanda Suresh Godse

Age about 37 yrs. Occ. Household,

Residing at Solu, Taluka Khed,

District Pune.

2. Kissan Govinda Dabhade (Since Deceased)

Through his legal heirs,

2a. Vilas Kisan Dabhade

Age about 48 yrs. Occ. Agriculturist,

Residing at Kalewadi,

Taluka Haveli, District Pune.

2b. Mangala Subhash Sendkar

Age adult, Occ. Household,

Residing at Manjari Bk., Popatwadi,

Taluka Haveli, District Pune.

3. Mr. Sham Harakchand Kolan

Age 61 years, Occupation Business

Residing at Alandi Devachi,

Taluka Khed, District Pune 412105

4. Mrs. Suvarna Rustum Somvanshi

Age 48 years, Occupation Housewife,

Residing at Gurukrupa Apartment,

NDA Road, Opposite Kakade Terrace,

Warje Malwadi, Taluka Haveli,

District Pune 411058

5. Mrs. Radha Sajjan Shelke

Age 28 years, Occupation Housewife,

Residing at Gosavi Galli, Lhamaswadi,

Taluka Kalamb, District Osmanabad, Pin 413507

6. Mr. Pradeep Baburao Jadhav

Age 24 years, Occupation Service,

Residing at Near Maruti mandir,

Devmurti, Jalna 431203

...Respondents

SQ Pathan/Arya Chavan 2/21

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——————

Mr. Rohit Joshi for the Appellant/Applicant

Mr. Sanskar Marathe for the Respondent No.1

Mr. Shailendra S. Kanetkar for the Respondent Nos. 2a and 2b

——————

CORAM : SHARMILA U. DESHMUKH, J.

RESERVED ON : JULY 17, 2026

PRONOUNCED ON : AUGUST 17, 2026

JUDGMENT :

1.The Second Appeal is at the instance of the original Defendant

No 1 being aggrieved by the common judgment dated 25

th

October

2005 passed by the First Appellate Court in Civil Appeal No.585 of 2002

�led by the Defendant No 1 and Civil Appeal No.591 of 2002 �led by

the Defendant No.2.

2.By order dated 10

th

March 2006, the Second Appeal was

admitted on the following substantial question of law :

“(i) Whether Section 43 of the Transfer of Property Act, 1882

is applicable especially when the original Plainti� had

knowledge of the fact that the suit land was ancestral joint

Hindu Family property of the original Defendant No. 2 Kisan

and his two brothers, Ananda and Sopan ?

(ii) Whether the Courts below ought to have considered the

e�ect of the fact that the Plainti� attempted to challenge the

SQ Pathan/Arya Chavan 3/21

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judgment and decree dated 20

th

October 1995 passed in

Regular Civil Suit No. 2209 of 1992 by preferring an Appeal,

and the Appeal was not entertained, as a result of which the

said decree may be binding on the original Plainti�?

(iii) Whether the Courts below committed an error in not

appreciating that oral evidence of one of the ostensible

purchaser as against ostensible purchaser about the fact that

Sale Deed in question was not intended to be acted upon was

admissible in evidence under Section 91 and 92 of the Indian

Evidence Act, 1872, and therefore, bene�t of such evidence

will enure to the original defendant No. 2?”

3.For the sake of clarity, the parties are referred to by their status

before the Trial Court.

4.RCS No. 843 of 1992 was instituted against the present

Appellant and Kisan Govind Dabhade, through his legal heirs, seeking a

declaration that the Plainti� is the bona �de purchaser for value of the

suit land and is absolute owner in possession of the suit land and the

Defendants be permanently restrained from interfering or disturbing

the peaceful possession of the Plainti� in the suit land. The suit

property was described in the plaint as piece and parcel of southern

half portion of land, i.e. 53 Ares out of the total area of 1 Hectare 6

SQ Pathan/Arya Chavan 4/21

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Ares, including pot kharab of 3 Ares from Survey No. 144/1 of village

Chowisawadi, i.e., previous Survey No. 943/1 of old village Charholi,

Taluka Haveli, District Pune.

5.The Plainti�’s case was that the original Survey No. 943/1 and

other lands situated at village Chowisawadi were the ancestral

properties belonging to Hindu Undivided Family of the Defendant No 2

consisting of Defendant No. 2 i.e. Kisan Govind Dabhade and his

brothers Sopan Govind Dabhade and Ananda Govind Dabhade, whose

names were jointly recorded in respect of the said lands. The

Defendant No. 2 made a fraudulent representation that pursuant to

the oral partition prior to the year 1980 between him and his brothers,

the Defendant No 2 is entitled to the suit land and is in actual

possession and cultivation of the same. Vide registered sale deed

dated 3

rd

April, 1987, the Plainti� and the Defendant No 1 jointly

purchased the suit land bearing Survey No 144/1 admeasuring 1 H 6

Are + 3 Ares for total consideration of Rs 25,000/, paid equally by the

Plainti� and Defendant No 1, who were then put in joint possession of

the suit land.

6. After execution of the sale deed, the Plainti� and the

Defendant No 1 mutually partitioned the suit land and southern half

portion admeasuring 53 Ares is allotted to present Plainti�, who is in

SQ Pathan/Arya Chavan 5/21

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actual cultivation and possession of the same. The execution of sale

deed was con�rmed by the Defendant No 2 in his written statement

�led in Civil Suit No 930 of 1989 �led by Sopan Dhabade against the

present Plainti� and Defendants. It was pleaded that it was

subsequently revealed that the entire Survey No 144/1 admeasuring 1

Hectare 59 Ares was joint family property of Defendant No 2, Sopan

Dhabade and their deceased brother Ananda Dhabade and there was

no partition by metes and bounds and each were having 1/3r d

undivided share therein. Sopan has sold his 1/3rd share to third party in

the year 1986 and the balance land was belonging to Defendant No 2

and Ananda Dhabade, who had since deceased and his legal heir was

Baban Ananda Dhabade.

7.It was pleaded that the Defendant No 2 purchased the share of

Baban Dhabade by registered sale deed of 16

th

October, 1989 and has

subsequently acquired rights and interest to feed the estoppel and the

Plainti� has become absolute owner as per his sale deed dated 3

rd

April, 1987. The Defendants have colluded to deceive the Plainti� and

grab his suit land, by seeking to mutate their names in respect of entire

portion of Survey No 144/1, and have attempted to create third party

rights.

8.In the written statement of Defendant No. 1, it was pleaded that

SQ Pathan/Arya Chavan 6/21

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the sale deed dated 3

rd

April, 1987 was a hollow sale deed in order to

save the property of Defendant No 2 from his brother Sopan. There

was no consideration paid for the sale transaction. The suit land was

never in cultivation of the Plainti�, but was being cultivated by the

Defendant No 2. The Defendant Nos. 1 and 2 purchased 53 Ares out

of Survey No. 943/1 and 23 Ares out of Survey No. 943/3 from Baban

Ananda Dabhade on 16

th

October 1989, and the Plainti� has no

concern with the said lands.

9.The legal heirs of Defendant No. 2 by their written statement

denied the claim of the Plainti�.

10.The Trial Court framed the necessary issues including the issue as

to whether the Plainti� proves that the suit land was jointly purchased

by the Plainti� and Defendant No.1 from Defendant No.2 on his

fraudulent and erroneous representation by way of registered Sale

Deed dated 3

rd

April 1987 and whether the Defendants prove that the

Sale Deed dated 3

rd

April 1987 is sham and bogus document. The

Plainti� examined himself and two witnesses, Santosh Chordiya and

Kaluram Dabhade, and relied upon the Sale Deed, mutation entry, the

statement of Defendants, etc. The Defendant No. 1 examined himself

and two witnesses, Vasant Tapkir and Nivrutti Rangnath Kale, who are

the attesting witnesses to the Sale Deed dated 3

rd

April 1987-Exhibit

SQ Pathan/Arya Chavan 7/21

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96. The legal heirs of the Defendant No.2 failed to enter into the

witness box.

11.The Trial Court answered the issue of execution of sale deed

dated 3

rd

April, 1987 in favour of the Plainti�. It observed that the

cross-examination of Defendant No. 1 is that after the Sale Deed dated

3

rd

April 1987 was executed, the son of Ananda, i.e., Baban, sold out his

portion to Defendant No. 1 and Defendant No. 2. It further noted the

representation of Defendant No. 2 that in view of the oral partition

prior to 1980 that he is in possession of 1 Hectare 6 Ares land is

supported by the version of Defendant No 1 that he is cultivating 1

Hectare 6 Ares land on behalf of Defendant No. 2, to which there is no

challenge by Kisan or his heirs. It further noted that in paragraph 14 of

the written statement, Defendant No. 1 has admitted the fact

regarding partition among Sopan, Ananda, and Kisan Dabhade, and

since the co-parcener Sopan as well as Baban have already sold out

their respective shares, it is proved that partition had already taken

place and therefore, Defendant No. 1 is now estopped from saying that

no partition had taken place. In view of the evidence on record, the

Trial Court held that the Plainti� along with Defendant No. 1 has

purchased the suit property, i.e., 1 Hectare 6 Ares.

12.The Trial Court further tested the claim of the Defendant No. 1

SQ Pathan/Arya Chavan 8/21

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that the Sale Deed of 3

rd

April 1987 was a hollow Sale Deed. In view of

the evidence on record that Defendant No. 1 had a�xed his signature

on the document and that the contents of the document were

narrated by him, the Trial Court opined that the Defendant No. 1

purchased the land along with the Plainti�. It further noted the

testimony of the attesting witnesses admitting that they have signed

the Sale Deed as attesting witnesses and held that the execution of

the document is proved by Defendant No. 1 himself. It noted that

Defendant No. 2 has already admitted the execution of the Sale Deed

and the possession of the Plainti� over the suit land and that the Sale

Deed was executed for legal necessity. It noted that the Defendant No.

1 has placed on record the certi�ed copy of the plaint in Civil Suit No.

1818 of 1993 �led by Defendant No. 2a for cancellation of the Sale

Deed. On perusal of the plaint in Suit No. 1818 of 1993, the Trial Court

observed that there is no prayer in the suit that the Sale Deed dated 3

rd

April 1987 was sham and bogus and answered the issue in the negative

as regards the Sale Deed of 3

rd

April 1987 being sham and bogus.

13.In view of Sections 91 and 92 of the Evidence Act, the Trial Court

noted that no oral evidence contrary to the contents of the written

document can be considered. It held that adverse inference can be

drawn against the legal heirs of Defendant No. 2 who have not stepped

SQ Pathan/Arya Chavan 9/21

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into the witness box and concluded that the Plainti� is a bona �de

purchaser. With these �ndings, the suit came to be decreed.

14.As against this, Civil Appeal No. 585 of 2002 was �led by

Defendant No. 1 and Civil Appeal No. 591 of 2002 was �led by

Defendant Nos. 2a and 2b, i.e., the legal heirs of Kisan Dabhade, which

came to be disposed of by the common judgment dated 25

th

October

2005. The Appellate Court framed the necessary points for

determination, including the issue as to whether the Sale Deed dated

3

rd

April 1987 was nominal, sham, and bogus Sale Deed and whether

the subsequent purchase of the share of Ananda through his son,

Baban, perfected the title of the Plainti� on the basis of the Sale Deed

dated 3

rd

April 1987 under Section 43 of the Transfer of Property Act.

15.Insofar as the �ndings on Section 43 of Transfer of Property Act

are concerned, the Appellate Court noted that Defendant No. 2 had

executed the Sale Deed in favour of the Plainti� and Defendant No. 1

and had transferred the property for consideration purporting to be

the absolute owner of the property, whereas the Defendant No. 2 had

only 1/3rd share in the property and could transfer only his 1/3rd share

of the property. It noted that by a registered Sale Deed dated 16

th

October 1989, Defendant No. 2 with Defendant No. 1 purchased the

share of the third brother, Ananda, from his son, Baban, and the

SQ Pathan/Arya Chavan 10/21

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Plainti�'s case is that by subsequent purchase of Ananda's share, the

Defendant No. 2 became absolute owner of the entire property and

relied upon Section 43 of the Transfer of Property Act to hold that the

Plainti� and Defendant No. 1 have perfected their title on the basis of

the Sale Deed in their favour executed by Defendant No. 2.

16.It noted the contrary argument by the Defendant No. 1 that for

attracting the provisions of Section 43, there has to be a fraudulent or

erroneous misrepresentation and by exercising that authority, the

property is required to be transferred. It was argued that when the

transferee has knowledge that the transferor has no perfect title,

Section 43 would not protect the right of such person and, therefore,

the provisions of Section 43 would not be applicable and of no help to

the Plainti�. The Appellate Court noted the provisions of Section 43 of

the Transfer of Property Act and held that though initially the

Defendant No. 2 did not have the right to sell the entire property, by

virtue of subsequent acquisition of title, Defendant No. 2 acquired

absolute ownership over the entire property and there is an erroneous

misrepresentation by Defendant No. 2 that under the oral partition, he

became the owner. The Appellate Court opined that the requirements

of Section 43 of the Transfer of Property Act are ful�lled and the

subsequent purchase of the share of Ananda from his son Baban

SQ Pathan/Arya Chavan 11/21

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perfected the title of the Plainti� and Defendant No. 1 on the basis of

the Sale Deed dated 3

rd

April 1987 and dismissed the Appeals,

upholding the judgment and decree of the Trial Court.

17.Mr. Joshi, learned counsel appearing for the Appellant, would

submit that before the Appellate Court an erroneous objection was

taken by the Defendant No 1 to the applicability of Section 43 of the

Transfer of Property Act, whereas Section 43 of the Transfer of

Property Act would apply in the present case. He submits that the

Appellate Court rightly held that Section 43 of the Transfer of Property

Act applies, however did not apply it in the correct perspective by

ignoring the fact that the subsequent Sale Deed dated 16

th

October

1989 was executed jointly in favour of the Defendant No 1 and 2 in

respect of one-third share of Ananda. He submits that Defendant No 2

perfected his title only in respect of about 79 Are i.e. his 53 Are and

half of the balance by reason of sale transaction of 16

th

October, 1989

i.e. about 26 Are. He submits that by reason of joint purchase by

Defendant No 1 and 2, the Defendant No 1 would be entitled to 53 Are

plus 26 Are being ½ share of 53 Are purchased from Baban increasing

the Defendant No 1’s holding.

18. He would point out paragraph 5 of the plaint, that it is an

admitted position that the Plainti� and Defendant No. 1 jointly

SQ Pathan/Arya Chavan 12/21

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purchased the suit land measuring 1 Hectare 6 Ares. He submits that

the Defendant No. 2 had only 1/3rd share and it is only upon the share

of Ananda being purchased jointly by the Defendant No.1 an d

Defendant No. 2 from Baban that, as far as Defendant No 2’s share is

concerned, the title was perfected, whereas in respect of the

Defendant No. 1's share under the Sale Deed dated 16

th

October 1989,

the Defendant No. 1 became entitled to ownership right and,

therefore, the Appellate Court could not decree the suit in respect of

the Sale Deed dated 3

rd

April 1987.

19.Per contra, Mr. Marathe would submit that 53 Ares of Survey No.

144/1 was sold to the Plainti� under the Sale Deed dated 3

rd

April

1987, and possession was given. He submits that there is no speci�c

pleading in the written statement that the 53 Ares was not sold to the

Plainti� and possession was not given as the original owner's legal

heirs have failed to contest the proceedings. He would further point

out that the issues framed by the Trial Court were restricted to the

issues which arose in the plaint as to whether the Plainti� and

Defendant No. 1 jointly purchased the suit land from Defendant No. 2

on his fraudulent and erroneous representation by way of registered

Sale Deed dated 3

rd

April 1987. He submits that before the Trial Court,

the case of the Defendants, was that the Sale Deed dated 3

rd

April

SQ Pathan/Arya Chavan 13/21

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1987 is sham and bogus, which they failed to prove.

20. He submits that the pleaded case of Defendant No. 1 is

completely di�erent from the arguments being canvassed before this

Court. He submits that there was no suit �led by the Defendants to

claim ownership in respect of land in excess of 53 Ares by virtue of

purchase under the subsequent sale deed executed on 16

th

October

1989. He submits that the ingredients of Section 43 of Transfer of

Property Act stood satis�ed and there are concurrent �ndings in

favour of the Plainti�.

21.He would point out that the Plainti� had produced the written

statement �led by Defendant No. 1 in Civil Suit No. 930 of 1987,

wherein Defendant No. 1 had admitted the execution of the Sale Deed

of 1987, and there was no whisper about the fact regarding this sham

and bogus Sale Deed. He would further point out that the �ndings of

the Trial Court in favour of the Plainti� as regards execution of sale

deed of 1987 and possession. He submits that these are �ndings of

fact which cannot be interfered in the Second Appeal, drawing support

from the decision of the Hon'ble Apex Court in the case of Vidhyadhar

v. Manikrao and Another

1

.

22.Mr. Kanetkar, learned counsel appearing for Defendant Nos. 2a

1 AIR 1999 SC 1441.

SQ Pathan/Arya Chavan 14/21

final SA-174-2006.doc

and 2b, submits that the Plainti� does not challenge the Sale Deed

dated 16

th

October 1989, and the e�ect of that sale deed was not

considered by the Appellate Court. He submits that by virtue of the

sale deed of 1989, the Defendant No. 1 was entitled to ½ share of

1/3rd share of Baban which was purchased by Defendant No. 1 jointly

with Defendant No. 2.

23.In rejoinder, Mr. Marathe would submit that the Defendant No. 1

seeks to take bene�t of Section 43 of the Transfer of Property Act to

the extent to which the Defendant No. 2 had perfected the title and

draws attention of this Court to the �ndings of the Appellate Court

that by virtue of purchase of 1/3rd share, the Defendant No. 2 became

absolute owner of the entire property and has perfected the title.

24.I have considered the submissions and perused the judgment of

the Trial Court and the Appellate Court.

25.The �rst substantial question of law framed by the order of 10

th

March, 2006, was as regards the applicability of Section 43 of Transfer

of Property Act, 1882 in view of the knowledge of original Plainti�

that the suit land was ancestral joint Hindu family property of

Defendant No. 2-Kisan and his brothers Ananda and Sopan. The learned

Counsel for the parties have addressed the Court only on the �rst

substantial question of law.

SQ Pathan/Arya Chavan 15/21

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26.The case of the Plainti� was of ownership of southern half

portion of Survey No. 144/1 admeasuring 53 Are by virtue of joint

purchase from Defendant No 2 by sale deed of 3

rd

April, 1987 and the

subsequent purchase in the year 1989 by the Defendant No 2 of

Ananda’s share, which perfected the title of Defendant No 2. The case

of the Plainti� was therefore, based on Section 43 of Transfer of

Property Act which reads as under:

“43. Transfer by unauthorised person who subsequently acquires interest

in property transferred.—

Where a person fraudulently or erroneously represents that he is

authorised to transfer certain immoveable property and professes to

transfer such property for consideration, such transfer shall, at the option

of the transferee, operate on any interest which the transferor may

acquire in such property at any time during which the contract of transfer

subsists.

Nothing in this section shall impair the right of transferees in good faith

for consideration without notice of the existence of the said option.

Ilustration

A, a Hindu who has separated from his father B, sells to C three �elds, X, Y

and Z, representing that A is authorised to transfer the same. Of these

�elds Z does not belong to A, it having been retained by B on the

partition; but on B’s dying A as heir obtains Z. C, not having rescinded the

contract of sale, may require A to deliver Z to him.”

27.The statutory provision provides that where a person

fraudulently or erroneously represents that he is authorized to transfer

certain immovable property and does so, such transfer shall operate on

any interest which transferor may acquire in such property at any time

during which the contract of transfer subsist.

28.Interestingly, the defense of Defendant No. 1, present Appellant

SQ Pathan/Arya Chavan 16/21

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before the Trial Court was that the sale deed of 3

rd

April, 1987 was

hollow sale deed and was not meant to be acted upon. The Defendant

No 1 denied the transfer of rights in the suit land by reason of the sale

deed of 3

rd

April, 1987 and claimed to have purchased 53 Are land

jointly with Defendant No 2 from Baban Ananda Dhabade under the

sale deed of 16

th

October, 1989 and also claimed to be in cultivation of

the entire suit land. The Defendants claimed ownership over the entire

Survey No 144/1 by reason of Defendant No 2’s share of 53 Are and the

subsequent joint purchase of the year 1989. There was no counterclaim

�led by Defendant No. 1, seeking declaration of ownership rights in the

suit land.

29.The Trial Court and the Appellate Court on appreciation of

evidence came to a speci�c �nding of the sale of suit land being proved

under the sale deed dated 3

rd

April, 1987 by the Defendant No 2 in

favour of the Plainti� and Defendant No 1. It held that the fact of

partition is proved and and admitted by Defendant No 1 himself in the

written statement. There are no submissions canvassed by Mr. Joshi to

demonstrate perversity in the �ndings of fact by the Courts. The

Plainti� has therefore proved that by virtue of the sale deed dated 3

rd

April, 1987, there was sale of Survey No 144/1 admeasuring 1 H 6 Ares

in favour of Plainti� and Defendant No 1 jointly.

SQ Pathan/Arya Chavan 17/21

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30. The Appellate Court framed the relevant point as to whether

the subsequent purchase of share of Ananda perfected the Plainti�’s

title by sale deed of 1987 under Section 43 of Transfer of Property Act.

The Appellate Court accepted the Plainti�’s arguments of applicability

of Section 43 of Transfer of Property Act as the Defendant No 2 by the

subsequent purchase perfected his title. The rival argument of

Defendants disputed the applicability of Section 43 of Transfer of

Property Act to claim that there was no erroneous representation and

the Plainti� had knowledge that Defendant No 2 had no perfect title.

31.The question of law as framed in the Appeal Memo qua Section

43 of Transfer of Property Act reads as under:

“ 8. Whether both the Learned Court below erred in holding that

all the requirements of Section 43 of Transfer of Property Act are

ful�lled by the Plainti� notwithstanding the fact that Plainti� has

knowledge that the suit property is ancestral Joint Hindu Family

property of Defendant No 2, Kisan Govinda Dabhade and h is

brothers, Sopan Govinda Dabhade and Ananda Govinda Dabhade.”

32.The �rst substantial question of law appears to have been

framed by this Court in view of the submissions at the time of

admission disputing the applicability of Section 43 of Transfer of

Property Act, when the Plainti� had knowledge of the fact that the

suit land was ancestral joint property of original Defendant No. 2 and

SQ Pathan/Arya Chavan 18/21

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his two brothers. It is therefore evident, that at the time of admission

of the Second Appeal, the present Appellant had argued in consonance

with his pleaded case before the Trial Court, which led to framing of

the substantial question of law. However, during arguments, Mr. Joshi

has canvassed submission in support of the applicability of Section 43

of the Transfer of Property Act, claiming that by virtue of the

subsequent sale deed of 16

th

October, 1989, the Defendant No 1 and 2

jointly acquired Ananda's share, and by virtue of the sale deed of 1987

and of 1989, the Defendant No 1’s share in Survey No . 144/1

increased. This submission is not part of the pleadings and was not the

Defendant No 1’s case before the Trial Court or the First Appellate

Court. In the pleadings, the Defendant No. 1 had set up a completely

di�erent case of the sale deed of 3

rd

April, 1987 being nominal sale

deed and no right being acquired either by Plainti�s or Defendant No.

1. There was no counterclaim �led by the Defendant No. 1, claiming

enhanced share in Survey No. 144/1 based on the subsequent sale

deed of 16

th

October,1989.

33.The submissions of Mr. Joshi are contrary to the pleadings, the

evidence, and the submissions canvassed before the Trial Court and the

Appellate Court, and even at the time of admission of Second Appeal.

Even accepting that this Court is empowered to hear the appeal on any

other substantial question of law not formulated by it, if it is satis�ed

SQ Pathan/Arya Chavan 19/21

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that the case involved such question, the question of law should arise

from the pleadings and evidence on record. Accepting the arguments

of Mr. Joshi would amount to considering a completely new case about

the extent of right of Defendant No 1 in Survey No 144/1, when there

is no counter claim �led by the Defendant No 1 seeking declaration

about the extent of his right and contrary case being set up before the

Trial Court. A completely new case cannot be put forth as substantial

question of law at the stage of Second Appeal.

34.In such peculiar facts, if the question of law is considered, it

cannot be now doubted, in view of Mr. Joshi's submissions, that Section

43 of the Transfer of Property Act was in fact applicable, and by virtue

of subsequent transaction of 16

th

October, 1989, Defendant No 2 had

perfected his title in respect of Survey No. 144/1. As there was no

pleading and no submissions canvassed as to the extent of the land to

which Defendant No 2had perfected his title, no substantial question

of law arose or was framed for consideration in that regard. It was

open for the Defendant No. 1 to �le counterclaim or independent

proceedings claiming an enhanced share by virtue of the sale deed of

16

th

October, 1989, which has not been done.

35.The suit �led by the Plainti� was for declaration that he was the

bona �de purchaser for value of the suit land and absolute owner in

possession of the suit land, i.e. southern half portion of Survey No.

SQ Pathan/Arya Chavan 20/21

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144/1. The sale deed of 3

rd

April, 1987 has been proved by the Plainti�,

and consequently, the sale transaction. In the absence of any pleading,

there was no issue framed as regards the extent of land, in which the

Plainti� could claim his rights under the sale deed of 3

rd

April, 1987. For

the �rst time, without any pleading, at the stage of the Second Appeal,

an issue which is fact laden cannot be raised.

36.In view of the changed stand taken by the Defendant No. 1 at

the Second Appeal stage, there are no arguments canvassed as regards

the other substantial question of law, which were also framed by

reason of the Defendant No 1’s earlier stand of non-applicability of

Section 43 of the Transfer of Property Act. As the Defendant No 1 has

now attempted to argue a case which was not his pleaded case before

the Trial Court and was not an issue for consideration, and has

accepted the applicability of Section 43 of Transfer of Property Act, no

substantial question of law arises. Resultantly, Second Appeal fails and

stands dismissed.

37.Applications do not survive for consideration and stand disposed

of.

[SHARMILA U. DESHMUKH, J.]

SQ Pathan/Arya Chavan 21/21