Iresh IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 874 OF 2016 Rameshlal Gurudasmal Adwani Since deceased by his legal heirs and representatives.

Vinod Rameshlal Adwani Age: 45 years, Occ: Business Residing at Plot No. 20, C.S. No. 262, E Ward, Hindurao Ghatge Colony, Kadamwadi Road, Kolhapur – 416003 ….Appellant Vs.

1. Gajanan Dadoba Pawar Age: 69 years, Occ: Retired Residing at Sardar Park, Devkar Panand, Plot No. 1, Kolhapur.

2. Ajeet Ganpatrao Mogale, Age: 59 years, Occ: Service Residing at 1736, E-Ward, Rajarampuri, 6^th Lane, Kolhapur.

3. Prashant Gajanan Pawar, Age: 36 years, Occ: Developer Residing at 904/1, ‘A’ Ward, Sardar Park, Devkar Panand, ….Respondents Kolhapur.

Ms. Anjali N. Helekar a/w Ms. Anu Kaladharan a/w Ms. Astha Arya for the appellant Mr. Bhushan Jadhav i/b Mr. Mandar Bagkar for respondent no.

Mr. Bhooshan Mandlik for respondent no. 2 Mr. Chetan G. Patil for respondent no. 3 CORAM : GAURI GODSE, J.

DATE : 24^th JULY 2025 ORAL JUDGMENT:

Basic facts:

1. This appeal is preferred by the plaintiff to challenge the judgment and order passed by the first Appellate Court remanding the suit to the Trial Court for deciding it afresh. The Appellate Court has set aside the decree for declaration and specific performance passed by the Trial Court in favour of the plaintiff and remanded the matter to the Trial Court to frame issues and permitted the parties to lead evidence and decide the suit de novo.

Submissions on behalf of the appellant (plaintiff):

2. Learned counsel for the appellant submits that the suit was filed for specific performance of an agreement dated 11^th September 2002, executed by defendant no. 2 in favour of the plaintiff. During the subsistence of the agreement in favour of the plaintiff, defendant no. 2 executed a registered sale deed in favour of defendant no. 3 on 11^th September 2003. The suit plot was owned by defendant no. 2 in a cooperative society. Since defendant no. 2 failed to perform his part of the contract, the suit was filed for a declaration that the subsequent sale executed in favour of defendant no. 3 is illegal and not binding upon the plaintiff. The plaintiff prayed for specific performance of the contract dated 11^th September 2002, executed by defendant no. 2 in favour of defendant no. 3.

3. Learned counsel for the appellant further points out the defence of defendant nos. 2 and 3. She submits that defendant no. 2 contended that since the specific performance could not be performed in favour of the plaintiff, the agreement was cancelled by him by returning the earnest amount. In view of these rival pleadings, the Trial Court framed the issues regarding the legality of the suit agreement in favour of the plaintiff, readiness and willingness to perform the contract and whether the transactions between defendant nos. 2 and 3 were binding upon the plaintiff, including other issues regarding whether defendant no. 3 was a bonafide purchaser for value without notice. All the other issues with regard to the transaction between defendant nos. 2 and 3 and the plaintiff’s entitlement to get the specific performance of the agreement were also framed by the Trial Court. Both parties led substantial evidence in support of their rival contentions. Accordingly, the suit was decreed in favour of the plaintiff.

4. Learned counsel for the appellant points out the reasons recorded by the First Appellate Court to remand the matter for a de novo trial. She points out the additional issues framed by the Appellate Court in paragraph 24 of the judgment. So far as the issues as framed by the Appellate Court are concerned, the parties have already led evidence in the trial on the issues proposed by the Appellate Court. Regarding the additional issue no. 4 framed by the Appellate Court on the reply given by defendant no. 2 for cancelling the suit agreement, learned counsel for the appellant submits that though a specific issue regarding cancellation of the suit agreement