Kiran Ramdas Pawar vs Navnath Bandu Pawar & Ors.

The appellant/original defendant no.3/pendente lite purchaser impugns judgment and decree dated 26.09.2025 passed by District Judge, Pandharpur in Regular Civil Appeal No.33/2021, thereby upholding judgment and decree dated 12.06.2018 passed by Civil Judge Senior Division, Pandharpur in Special Civil Suit No.53/2012, whereby suit filed by plaintiffs/respondent nos.1 and 2 for specific performance of contract has been decreed. (Hereinafter, parties are referred to by their original status in suit for the sake of convenience and brevity).

The plaintiffs instituted Special Civil Suit No.53/2012 seeking decree for specific performance of contract. The plaintiffs contend that on 16.03.2009, defendant nos.1 and 2 executed agreement to sale in respect of land Gut No.564/1/A and 564/2 in presence of witnesses. The defendants accepted earnest amount of Rs.7,00,000/- and agreed to execute sale deed after getting necessary permission from Competent Authority, but they were avoided to execute sale deed. The plaintiffs issued notice dated 14.06.2011 asking defendants to executed sale deed. Ultimately, plaintiffs filed Special Civil Suit No.53/2012 for decree of specific performance of contract.

The defendant no.1 failed to cause appearance in suit. Hence, suit proceeds ex-parte against him. The defendant no.2 filed his written statement refuting plaintiffs’ claim. On 03.03.2015, Competent Authority/Tahsildar passed order of removal of restriction to transfer suit land. On 16.03.2015, plaintiffs had issued newspaper publication regarding pendency of suit. On 09.04.2015, defendant no.1 executed sale deed to the extent of his share from Gut Nos.564/1/A and 564/2 in favour of plaintiffs. However, suit proceeded as against defendant no.2. On 03.06.2015, defendant no.2 transferred his one half share from suit property to defendant no.3. Eventually, on 15.12.2015, defendant no.3 was added as party in suit. On 23.02.2016, defendant no.3 caused his appearance and sought time to file written statement. However, on his failure, order of ‘no written statement’ was passed. On 20.06.2017, defendant no.3 filed application below Exhibit-43 to set aside ‘no written statement’ order. It was allowed subject to cost of Rs.1000/-. Inspite of opportunity, defendant no.3 failed to deposit cost. Ultimately, suit proceeded without his written statement.

The plaintiffs impounded document/agreement and paid necessary stamp duty. They recorded their own evidence. The defendants failed to cross-examine them or lead any evidence. Finally on 12.06.2018, suit of plaintiffs came to be decreed.

Aggrieved defendants filed Appeal before District Court. Even at appellate stage, defendants made application seeking permission to deposit cost of Rs.1000/- and accept written statement. The District Judge was pleased to reject said application. The defendant no.3 filed Writ Petition No.14118/2024 before this Court, wherein he was permitted to file fresh application for acceptance of written statement. Ultimately, Appeal was dismissed.

Meanwhile, execution was filed in pursuance to decree of specific performance of contract. Accordingly, under order of Court, Assistant Superintendent executed sale deed in favour of plaintiffs. At this stage, defendant no.3 filed present Second Appeal assailing concurrent judgment and decree passed by Courts below.

Mr. Samir Kumbhakoni, learned Advocate appearing for appellant would submits that plaintiffs were under obligation to prove agreement to sale by leading acceptable evidence. The defendant no.2 had denied execution of agreement to sale dated 16.03.2009. Later on, he sold suit land to defendant no.3 under registered sale deed. Mr. Kumbhakoni would further submit that plaintiffs have not examined attesting witness or proved document in terms of Section 68 of Indian Evidence Act. In that view of matter, suit of plaintiffs ought to have been dismissed. Mr. Kumbhakoni relies upon observations of Supreme Court in case of Thiruvengada Pillai Vs. Navaneethammal & Anr.^{11.2008 (4) SCC 530.}.

Per contra, Mr. Vaibhav Gaikwad, learned Advocate appearing for respondents would submit that although defendant no.1 filed his written statement, he failed to step into witness box or cross-examine plaintiffs. The agreement to sale is duly proved. The Courts have recorded concurrent finding of facts, which does not require interference in Second Appeal.

Having considered submissions advanced by learned Advocates appearing for respective parties, it can be observed that plaintiffs filed suit based on agreement to sale dated 16.03.2009 executed by defendant nos.1 and 2 in favour of plaintiffs. The defendant no.2 appeared in suit, filed written statement and denied agreement to sale, whereas defendant no.1 accepted case of plaintiffs and executed sale deed to the extent of his share during pendency of suit. Pertinently, defendant no.2 did not enter in witness box or cross-examine plaintiffs on point of execution of agreement to sale. The appellant/defendant no.3 purchased suit property during pendency of suit, although he had notice of pending suit in respect of suit property. The appellant/defendant no.3 did not file written statement inspite of opportunity granted to him. Even ‘no written statement’ order passed against him was set aside subject to payment of cost. However, appellant/defendant no.3 failed to take up opportunity and file written statement. During course of trial, no cross-examination is conducted on behalf of appellant/defendant no.3. As such, evidence of plaintiffs on the point of agreement to sale gone unchallenged. Ultimately, suit came to be decreed.

It is trite that, pendente lite purchaser/defendant no.3 would enter into shoes of his vendor i.e. defendant no.2. The defendant no.1 did not contest suit, except filing written statement refuting plaintiffs’ claim. The appellant/defendant no.3, who is pendente lite purchaser cannot have independent locus to challenge agreement to sale. Section 48 of Transfer of Property Act would come to aid of plaintiffs, who have priority of rights over suit land in pursuance to agreement to sale. The subsequent/pendente lite transfer by defendant no.1 in favour of defendant no.3 would not override right those created in favour of plaintiffs under agreement to sale.

Although Mr. Kumbhakoni, learned Advocate appearing for appellant relying upon Section 68 of Indian Evidence Act contends that non-examination of attesting witness was fatal to case of plaintiffs, his submissions cannot be countenanced for simple reason that Section 68 applies to documents, which requires legal attestation of witnesses. In such cases, it would be incumbent upon parties to record evidence of one of attesting witness. No provision is brought to notice of this Court that like Will, attestation is compulsory for agreement to sale. In absence of mandate of law requiring agreement to sale to be attested by witness, non-examination of attesting witness before Court would not be fatal to case of plaintiffs.

It is true that, in cases where there is serious dispute as to execution of agreement to sale, by way of abundant precaution, plaintiff can examine attesting witness to strengthen his case. However, that would be Rule of prudence to bring best possible evidence before Court and not as mandate of law. In aforesaid circumstances, this Court finds that both Courts on appreciation of evidence rightly accepted case of plaintiffs. The Trial Court as well as Appellate Court observed that plaintiffs had issued notice for execution of agreement to sale to defendants. Those notices were not replied. Pertinently, defendant no.1 acted upon aforesaid agreement to sale and executed sale deed in favour of plaintiffs. In that view of matter, it is difficult to hold that agreement to sale is false or fraudulent. The defendant no.2 took plea of collusion and fraud in written statement, however, did not step into witness box or cross-examine plaintiffs on that point.

In result, no substantial question of law arises for consideration in Second Appeal. Hence, Appeal stands dismissed.

In view of dismissal of Appeal, pending Interim Application also stands disposed of.

(S. G. CHAPALGAONKAR)

JUDGE