2-SA-1391-2004.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 1391 OF 2004

1. Pushpa Omkar Dusane

Age 48 yrs, Occ : Household,

R/o. Government Quarters.

2. Alka Abhimanyu Ghodake

Age 28 Yrs, Occ : Household,

R/o. Hundiwala Lane, Nashik.

3. Durga Omkar Dsane Age 24 Yrs.

4. Nalini Bharat Ahirrao

Age 27 Yrs, Occ : Household,

R/o. Devkinandan Society,

Kamthwade, Nashik.

5. Santosh Omkar Dusane, Age 22 Yrs.

6. Rohini Omkar Dusane, Age 19 Yrs,

All R/o. Golf Club, Behind 3 Bunglow

Near LIC Office, Nashik. ...Appellants

(Org. Plaintiffs)

VERSUS

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Swapnil

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Vijay Vitthal Dusane

Age : Major, Occ : Service,

R/o. H.No.27, Devkinand Co-op.

Society, Kamathwade, Nashik.

...Respondent

(Original Defendant)

Mr. B. K. Barve a/w. Mr. Sandeep Barve, Ms. Sonali Patil,

Ms. Diksha Gaikwad and Ms. Simmy Sebastian i/b. B. K.

Barve and Co. for the appellants.

Mr. Sanjay P. Shinde a/w. Mr. Prathmesh T. B. for the

respondent.

CORAM : GAURI GODSE J

RESERVED ON: 29

th

JANUARY 2026

PRONOUNCED ON: 8

th

JUNE 2026

JUDGMENT:

1. This second appeal is preferred by the original plaintiffs

to challenge the judgment and decree passed by the first

appellate court allowing the respondent’s appeal and setting

aside the trial court’s decree in favour of the appellants. The

trial court decreed the suit, declaring the agreement dated

19

th

November 1992 null and void. The respondent was

directed to hand over the possession of the suit property to

the plaintiffs.

2. The second appeal was admitted on 12

th

December

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2008 on the following substantial questions of law :-

“1. Whether the document at Exh.46 i.e. agreement

to sale allegedly executed by the husband of the present

appellant no.1 in favour of the present respondent can be

said to be valid one in the absence of signature of the

respondent ?

2. Whether the respondent can claim any right in the

suit property on the basis of document at Exh.46 which is not

signed by him ?”

FACTS IN BRIEF:

3. The appellants filed the suit seeking a declaration that

the premises in the defendant's possession are owned by the

plaintiffs and that they are entitled to possession. The

plaintiffs further prayed for a declaration that the agreement

executed by the deceased husband of plaintiff no.1 was null

and void as the defendant got the same executed by

cheating the deceased husband of plaintiff no.1. The plaintiffs

described the suit premises as two rooms out of the four

rooms constructed on the plot of land of 1500 square feet

along with the road to approach the suit premises. The plot of

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land was allotted to the deceased Omkar as he was a

member of the Devkinandan Cooperative Housing Society.

The deceased Omkar constructed the four rooms by availing

a loan while in government service. The loan was repaid in

1994. Plaintiff nos. 2 to 6 are the children of plaintiff no.1 and

deceased Omkar.

4. Out of the four rooms, constructed by Omkar, two

rooms are occupied by plaintiff no.4 and her husband.

Deceased Omkar, along with his family, was to start residing

in the suit premises on the occasion of Gudi Padwa in 1993;

however, as the defendant had a dispute with his brother,

and, in view of the domestic quarrels, the defendant

requested permission to temporarily reside in the two rooms.

Since the defendant was a distant relative, the deceased

Omkar permitted him to temporarily reside in the two rooms.

Thereafter, Omkar expired on 25

th

May 1994. The plaintiffs

requested the defendant to vacate the suit premises;

however, he refused to vacate. Hence, the plaintiffs issued a

notice dated 30

th

July 1994 calling upon the defendant to

hand over the possession. The defendant refused to comply

with the notice by contending that the deceased Omkar had

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executed an agreement to sell the land to him and that he

had constructed the rooms on the said land. Hence, the suit

for declaration and possession was filed on the ground that

the plaintiffs are the owners of the suit premises and that the

defendant was unlawfully occupying the same.

5. The defendant filed his written statement and denied

the suit claim. He contended that the deceased Omkar had

agreed to sell the land to him by executing an agreement

dated 19

th

November 1992 for a total consideration of Rs.

22,000/-. By the said agreement, the deceased Omkar

agreed to transfer an area of 350 square feet from the total

plot admeasuring 1150 square feet. The defendant was

accordingly put in possession of the open area in lieu of the

agreement for sale. The defendant, at his own cost of Rs.

1,32,000/-, constructed the two rooms. Hence, the defendant

claims ownership over the suit premises, i.e. the constructed

area, on the ground that he was put in possession of the

open area by the deceased Omkar by executing an

agreement for sale.

6. The trial court decreed the suit, holding that the

defendant was permitted to occupy the suit premises, i.e.,

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two rooms, as he was in urgent need due to a dispute in his

family. The trial court further held that the defendant was in

permissive occupation of the suit premises for a short period

and was unable to prove that he was put in possession of the

open area under an agreement for sale. The defendant was,

therefore, held to be in unauthorised occupation of the suit

premises and was directed to hand over possession. The

agreement for sale dated 19

th

November 1992 relied upon by

the defendant was held to be null and void and not binding

upon the plaintiffs.

7. The first appellate court, however, reversed the trial

court’s findings on the ground that the plaintiffs were unable

to prove that the defendant was occupying the suit premises

as a gratuitous licensee. It was further held that the

agreement in favour of the defendant, executed by Omkar,

would be binding upon the plaintiffs, as they were unable to

prove that the defendant obtained the document by fraud.

The first appellate court further held that the defendant

succeeded in proving that he was put in possession of the

suit premises pursuant to the agreement for sale in his

favour, the defendant was always ready and willing to

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perform his part of the contract, and therefore, he was

entitled to protect his possession under Section 53A of the

Transfer of Property Act, 1882. The first appellate court,

therefore, allowed the defendant’s appeal and dismissed the

suit by reversing the trial court’s findings in favour of the

plaintiffs.

SUBMISSIONS ON BEHALF OF THE APPELLANTS:

8. Learned counsel for the appellants (plaintiffs) submits

that the first appellate court failed to record any valid reasons

for reversing the trial court’s findings disbelieving that the

construction was carried out by the defendant. The

agreement for sale relied upon by the defendant to contend

that he was put in possession of the suit premises was an

unregistered and unstamped document. Hence, the

defendant would not be entitled to claim protection under

Section 53A of the Transfer of Property Act, 1882, on the

basis of an unregistered and unstamped document. There

was no dispute that the plot on which the suit premises are

constructed was allotted to Omkar on the ground that he was

a government employee. By obtaining a loan, the deceased

Omkar had constructed the suit premises.

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9. The plaintiffs specifically pleaded that the agreement

relied upon by the defendant was a forged and fabricated

document and was never signed by the deceased Omkar.

The defendant failed to prove that the signature on the

document was of deceased Omkar. The respondent is not

entitled to claim any protection of possession based on an

unstamped and unregistered document. Hence, in the

absence of any evidence to support the valid execution of the

agreement, the defendant was not entitled to claim any

protection under Section 53A of the Transfer of Property Act.

Although the defendant contended that he constructed the

two rooms at his own expense, he was unable to prove it.

Hence, the trial court rightly concluded that the defendant

was not entitled to retain possession of the suit premises on

the ground that he had constructed it on the land handed

over to him by Omkar under an agreement for sale.

10. Learned counsel for the plaintiffs submits that the

defendant failed to take any steps to get the document

specifically performed in his favour. Hence, there was no

question of permitting the defendant to retain possession on

the ground of protection under Section 53A of the Transfer of

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Property Act. He submits that it is a well-established legal

principle that unless a suit for specific performance of the

alleged agreement is prayed for, the purchaser would not be

entitled to continue in possession of the property on the

ground of protection under Section 53A of the Transfer of

Property Act.

11. To support his submissions, learned counsel for the

appellants relied upon the decisions of the Apex Court in (i)

Ramesh Chand (D) Thr. Lrs. Vs. Suresh Chand and Anr

1

,

(ii) Suraj Lamp and Industries Private Limited (2)

Through Director Vs. State of Haryana and Anr

2

, (iii)

Tajender Singh Gambhir and Anr. Vs. Gurpreet Singh

and Anr

3

, (iv) Vinod Infra Developers Ltd. Vs. Mahaveer

Lunia and Ors

4

and the decision of the High Court in (v)

Mahadeo Nathuji Patil Vs. Surjabai Khushalchand

Lakkad and Ors

5

.

12. Learned counsel for the appellants, therefore,

submitted that in the absence of any proof that the

agreement relied upon by the defendant was signed by the

12025 SCC OnLine SC 1879.

2(2012) 1 SCC 656.

3(2014) 10 SCC 702.

42025 SCC OnLine SC 1208.

51993 SCC OnLine BOM 385.

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deceased Omkar, the same cannot be accepted as a validly

executed document, as it was not signed by even the

respondent. Hence, the agreement relied upon by the

respondent cannot be said to be a concluded contract

between the defendant and the deceased Omkar for the

purpose of seeking protection under Section 53A of the

Transfer of Property Act. Hence, in the absence of any right

to retain the possession of the suit premises, the defendant

would not be entitled to seek any protection. Both the

questions of law, therefore, must be answered in favour of

the appellants and the first appellate court’s decree be set

aside, and the trial court’s decree be confirmed.

SUBMISSIONS ON BEHALF OF THE RESPONDENT:

13. Learned counsel for the respondent (defendant)

supported the impugned judgment and decree. According to

the learned counsel for the respondent, the issue of

admissibility of the document on the ground that it is

unstamped and unregistered cannot be raised for the first

time in the second appeal. It is a well-established legal

principle that the objection on admissibility of a document

has to be raised at the threshold at the time of trial, and it

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cannot be raised for the first time in the second appeal. To

support his submissions, learned counsel for the respondent

relied upon the decision of the Apex Court in Shamlal

Kumar Roy Vs. Sushil Agarwal

6

.

14. Learned counsel for the respondent submits that the

appellate court has rightly dealt with the evidence on record

to accept the plea of protection under Section 53A of the

Transfer of Property Act. He relied upon the findings

recorded by the first appellate court in paragraph 13 of the

impugned judgment. He submits that the first appellate court

has rightly held that the burden was upon the plaintiffs to

prove that the defendant had no right to retain possession.

Since the defendant had raised the defence that he was in

possession based on the agreement executed by the

deceased Omkar and not a gratuitous licensee, the burden

was upon the plaintiffs to prove that the defendant was

occupying the suit premises as a gratuitous licensee.

15. So far as the validity of the agreement for sale relied

upon by the defendant is concerned, learned counsel for the

respondent submits that the document is signed by the

deceased Omkar. The plaintiffs denied Omkar’s signature.

6(2006) 11 SCC 331.

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Hence, the burden was upon the plaintiffs to prove that the

document was not validly signed by Omkar. The document is

not signed by the defendant; however, the absence of his

signature would not affect the agreement's validity, as it is

signed by the deceased Omkar, who was the original owner

of the open plot of land, who agreed to sell it to the defendant

and handed it over to the defendant for construction.

16. Learned counsel for the defendant relied upon the

admissions given by the plaintiffs, which, according to the

learned counsel for the defendant, would amount to admitting

the execution of the agreement in favour of the defendant.

Learned counsel for the defendant submits that the question

of law framed in the second appeal is only on the ground of

the absence of the defendant’s signature on the document.

The document was signed by Omkar, who was the original

owner of the property. Hence, the absence of the signature of

the purchaser, i.e., the defendant, cannot be a ground to hold

that the document is invalid. Hence, based on the agreement

to sell executed by the deceased Omkar, the defendant was

entitled to seek protection in view of Section 53A of the

Transfer of Property Act, as the possession was handed over

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to the defendant in furtherance of the contract between the

defendant and the deceased Omkar. Hence, both the

questions of law must be answered in favour of the

respondent, and the impugned judgment and decree deserve

to be confirmed.

ANALYSIS AND CONCLUSIONS:

17. I have carefully perused the agreement, pleadings,

evidence and both the judgments. The suit is filed for the two

constructed rooms on the plot of land allotted to the

deceased Omkar. The plaintiffs are claiming the title on the

plot of land and the constructed area on the ground that they

are the heirs and legal representatives of the deceased

Omkar. The original ownership of Omkar over the entire plot

of land, and the plaintiffs being the heirs and legal

representatives of the deceased Omkar, are not in dispute.

The plaintiffs have described the plot of land and the

constructed area of the house, which was built during

Omkar’s lifetime from his own income. Thus, the plot of land

and the entire construction were owned by Omkar. Out of the

constructed area, two rooms are occupied by the defendant.

The plaintiffs have thus pleaded ownership of the entire plot

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of land and the entire constructed area. According to the

plaintiffs, the defendant’s source of possession was not as a

gratuitous licensee but as a permissive possessor.

18. In response, the defendant claimed right over the suit

premises, i.e. two rooms, based on an agreement for sale

dated 19

th

November 1992, executed by Omkar. Even

according to the defendant, the agreement was executed by

the deceased Omkar in respect of an open space of 350

square feet out of the total plot owned by Omkar. Thus, the

defendant claims his source of possession under the

agreement in respect of the open space. According to the

defendant, he constructed the two rooms he occupies in the

area that the deceased Omkar agreed to transfer to him.

19. The defendant claims to have constructed the two

rooms on the land, which was handed over to him in

furtherance of the contract for the sale of an open area.

Thus, the defendant claims to be in possession of the open

area as part performance of the agreement in his favour, and

to own the constructed area as he constructed it. Thus, the

protection claimed by the defendant under Section 53A of the

Transfer of Property Act would not apply to the suit premises,

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as even according to the defendant, the agreement was for

the open area and not for the constructed area. So far as the

construction is concerned, the plaintiffs have produced the

record of the loan obtained by the deceased Omkar for the

purpose of construction and its repayment.

20. The first appellate court has not recorded any findings

to the effect that the suit premises, i.e., the two rooms, were

constructed by the defendant, and therefore the defendant

was the owner of the suit premises. The first appellate court

recorded findings on assumptions and presumptions to

believe the respondent’s contention that he constructed the

two rooms. No valid reasons are recorded by the first

appellate court to set aside the trial court’s findings that the

construction on the plot owned by Omkar was carried out by

the deceased Omkar and that there was no cogent and

satisfactory evidence that the construction was carried out by

the respondent.

21. The first appellate court has referred to the provisions

of Section 53A of the Transfer of Property Act to hold that the

defendant would be entitled to protect his possession as he

was put in possession of the suit premises in furtherance of

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the contract in his favour. The execution of the document in

favour of the defendant is accepted as valid on the ground

that it was seen to have been signed by the deceased,

Omkar, and the plaintiffs failed to prove that it was not signed

by Omkar. The defendant was held to be in valid possession

of the suit premises under the agreement executed in

respect of the open space. The first appellate court has failed

to record any findings for granting protection under Section

53A of the Transfer of Property Act in respect of the

constructed area, relying on the contract for the open space.

22. The ground of admissibility of the document in view of

its non-registration and non-payment of stamp duty is not

required to be discussed, as no such question of law is either

framed or arises in the second appeal. The issue of the

document's admissibility need not be examined as no such

objection was raised in the trial court. The document was

admitted in evidence because it was confronted during the

respondent's cross-examination.

23. The second appeal is admitted on the questions of law

as to whether the defendant would be entitled to claim any

right in respect of the suit premises based on the document

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that is not signed by him. According to the defendant, the

document is executed in respect of the open space. The suit

is filed for two rooms constructed on the open space. There

is no dispute that the entire plot of land, including the open

space, which is the subject matter of the agreement relied

upon by the defendant, was originally owned by Omkar. The

plaintiffs are admittedly the heirs and legal representatives of

the deceased Omkar. Hence, they would be entitled to the

absolute ownership of the entire open space through Omkar.

24. Admittedly, the defendant never got the contract

enforced in his favour in respect of the land. Hence, the

defendant has no title over the land. He has not pleaded and

proved the ingredients envisaged under Section 53A of the

Transfer of Property Act in respect of the land. To claim

protection under Section 53A, the respondent is under an

obligation to plead and prove that, in furtherance of the

contract, he was put in possession of the land. Therefore,

even if the agreement at Exhibit 46 is accepted as a validly

exhibited document, the contents of the same are not proved

by the respondent to seek protection under Section 53A by

any satisfactory pleadings and evidence that he was put in

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possession of the land in furtherance of the contract.

25. The respondent seeks protection under Section 53A for

his possession of the constructed area, on the basis of an

agreement that, according to him, was executed in respect of

open land. Hence, the document at Exhibit ‘46’ relied upon

by the respondent would not be of any assistance to him in

claiming any protection under Section 53A in respect of the

constructed area. Hence, the respondent has no right, title or

interest in any nature, either in respect of the land or the

constructed area, that is, the suit premises.

26. The only right claimed by the defendant is based on the

agreement for sale, which is admittedly not signed by him.

The defendant has neither prayed for any declaration of

ownership of the constructed area nor has he proved that he

constructed it at his own cost, and therefore, has any

ownership of the constructed area. The defendant seeks

protection of the constructed area by relying upon Section

53A of the Transfer of Property Act, based on the agreement

relied upon by him, which was only in respect of the open

land. Hence, there would be no question of granting

protection under Section 53A to the constructed area on the

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basis of an agreement for open land.

27. The plaintiffs have specifically pleaded that the

defendant was in permissive use of two rooms. Hence, the

burden was upon the defendant to prove his ownership or

any valid source of possession of the constructed area. In

the absence of any such proof of ownership by the

defendant, the trial court has rightly held that the defendant

was not entitled to retain possession. Based on the evidence

on record, the trial court had rightly held that the defendant

was in permissive use of the two rooms.

28. The first appellate court has not recorded any reasons

to reverse the trial court’s findings that the defendant was in

permissive use of the two rooms, i.e., the suit premises. The

findings recorded by the first appellate court, based on the

respondent’s pleadings that he was the owner of the rooms,

would not be sustainable in the absence of any title

document or satisfactory evidence that he constructed them

at his own cost with the permission of Omkar and the society.

The first appellate court has not recorded any finding of fact

that the defendant has pleaded and proved that the

constructed area, i.e. the suit premises, was owned by him.

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The findings recorded by the first appellate court on the

ground of gratuitous licensee would not be sustainable, as it

was nobody’s case that the defendant was occupying the suit

premises as a gratuitous licensee.

29. The document at Exhibit ‘46, which, even according to

the defendant, was executed in respect of the open land,

would not give any right to the defendant to claim any title

over the constructed area. The document is admittedly not

signed by the respondent. The document is admitted in

evidence as the respondent was confronted with it during the

cross-examination. The respondent has not led any evidence

to prove the correctness of the contents of the document.

However, since the document is only an agreement to sell

open land signed by the vendor, its validity would not be

affected solely on the ground that it is not signed by the

respondent, that is, the purchaser. Hence, the first question

of law is answered accordingly. However, even if the validity

of the execution of the document at Exhibit 46 is not affected

on the ground that it is not signed by the respondent, it does

not create any right, title or interest of whatsoever nature in

his favour either in respect of the land or the suit premises.

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30. In Ramesh Chand , the well-established legal

principles governing the application of the protections under

Section 53A are reiterated by the Apex Court. It is held that

the essential conditions for invoking the doctrine of part-

performance as envisaged under Section 53A of the Transfer

of Property Act have been enunciated by the Apex Court in

Nathulal v. Phoolchand

7

as under:

“9. The conditions necessary for making out the

defence of part performance to an action in ejectment by

the owner are:

(1) that the transferor has contracted to transfer for

consideration any immovable property by writing

signed by him or on his behalf from which the terms

necessary to constitute the transfer can be

ascertained with reasonable certainty;

(2) that the transferee, has, in part performance of the

contract, taken possession of the property or any

part thereof, or the transferee, being already in

possession continues in possession in part

performance of the contract;

(3) that the transferee has done some act in

furtherance of the contract; and

(4) that the transferee has performed or is willing to

perform his part of the contract.”

31. In the present case, admittedly, the respondent has not

taken any steps in furtherance of the contract executed by

the deceased Omkar in his favour. Even otherwise,

according to the respondent, the agreement he relied upon

7(1969) 3 SCC 120

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was executed in respect of the open land. Therefore, even as

per the pleaded case of the respondent, he was never put in

possession of the suit premises, that is, the constructed area

in part performance of the agreement for sale. Hence, the

respondent is not entitled to seek protection envisaged under

Section 53A in respect of the suit premises, i.e., the two

rooms, on the basis of the agreement for the open land.

32.In Suraj Lamp & Industries, the Apex Court held that

an agreement of sale, whether with possession or without

possession, is not a conveyance and that Section 54 of the

Transfer of Property Act enacts that sale of immovable

property can be made only by a registered instrument and an

agreement of sale does not create any interest or charge on

its subject-matter.

33.In Vinod Infra Developers, the Apex Court held that

under sections 17, 23, and 49 of the Registration Act, 1908,

an unregistered agreement to sell is inadmissible in evidence

for the purpose of transferring title, and such a document has

no legal sanctity in establishing ownership or rights in

immovable property. It is held that such documents are

inadmissible in evidence to convey title or to complete a sale

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and can only be admitted for collateral purposes or in a suit

for specific performance.

34. In Mahadeo Nathuji Patil, the Full Bench of this Court

held that the statutory protection granted under section 53-A

of the Transfer of Property Act to a transferee in possession

to continue his possession under an unregistered contract or

instrument of transfer is not lost by lapse of time to file the

suit for specific performance of contract for acquiring title, if

he satisfies the essential requirements of the Section 53A,

and it is not incumbent upon him to file such a suit within time

to protect his possession after the lapse of time.

35. In Shyamal Kumar Roy, the Apex Court held that the

party objecting to the admissibility of the document must

raise an objection so as to enable the trial Judge to

determine the issue upon application of his judicial mind at

the appropriate stage. It is further held that if no objection

had been taken in regard to the admissibility of the document

at the trial stage, the party at a later stage cannot be

permitted to turn round and contend that the document is

inadmissible in evidence. In the present case, the document

at Exhibit ‘46’ is admitted in evidence, as the respondent was

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confronted with it during cross-examination. The document is

admittedly not signed by the respondent. The respondent did

not lead any evidence to prove the correctness of its

contents. Hence, even if this second appeal would not raise

any question of law on the issue of admissibility of the said

document in evidence; however, the said document would

not confer any right, title or interest of any nature in favour of

the respondent in respect of the open land or the suit

premises.

36. In the present case, admittedly, the respondent has not

taken any steps in furtherance of the agreement. The

agreement was never specifically performed in favour of the

respondent. It would give him neither title to the open land

nor to the constructed area. Except for the said agreement,

no document is produced and relied upon by the respondent

for claiming any right in the constructed area, that is, the suit

premises. Though the respondent contended that he had

carried out the construction, no satisfactory evidence has

been produced to prove that he owns it. The first appellate

court, which is the last fact-finding court, has not recorded

any findings of fact with valid reasons in favour of the

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respondent to the effect that the suit premises were

constructed by him and therefore owned by him. Thus, the

second question of law, whether the defendant is entitled to

claim any right in respect of the suit premises, based on the

document at Exhibit ‘46’, must be answered in favour of the

plaintiffs. The respondent is therefore not entitled to retain

the possession of the suit premises, which are owned by the

plaintiffs.

37. The second appeal is therefore allowed by passing the

following order:

(i) The judgment and decree dated 19

th

September

2002 passed by the District Judge, Nashik, in

Regular Civil Appeal No. 243 of 1997 is quashed

and set aside.

(ii) Regular Civil Appeal No. 243 of 1997 is dismissed.

(iii) The judgment and decree dated 25

th

April 1997

passed by the Joint Civil Judge, J. D. Nashik, in

Regular Civil Suit No. 883 of 1994 is modified by

passing the following order:

(a) It is declared that the agreement dated 19

th

November 1992, Exhibit ‘46’, confers no right,

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title or interest of whatsoever nature in favour of

the respondent (defendant) in respect of the land

or the suit premises, that is, the two rooms, as

described in the plaint.

(b) The respondent (defendant) shall deliver the

vacant and peaceful possession of the suit

premises, that is, the two rooms as described in

the plaint, to the appellants (plaintiffs) within two

months from today.

(c)Deficit court fee, as ordered by the trial court,

shall be paid by the appellants (plaintiffs) if not

yet paid. On payment of the deficit, court fees, if

any, a decree be drawn accordingly, in terms of

this order.

(d)The enquiry into mesne profit is ordered under

Order XX Rule 12, (1) (c) of the Civil Procedure

Code, 1980.

(e)The respondent (defendant) shall pay the cost of

the proceedings to the appellants (plaintiffs).

[GAURI GODSE, J.]

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