Smt. Meena W/O Shankar Khapekar vs Smt. Mithil S/O Dhanraj Dobakar — Bombay HC (2026) — LawSathi Research

Smt. Meena W/O Shankar Khapekar vs Smt. Mithil S/O Dhanraj Dobakar — Bombay HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Despite dismissal, the appellant is granted time to vacate the suit property till 28/02/2027.

Issue for consideration

Whether the delay of around 170 days in filing the first appeal ought to be condoned and the second appeal allowed, notwithstanding the defence the appellant intends to take on merits. +1 more

Court's answer

Although in other circumstances the condonation application could have been allowed, this Court is not inclined to allow the appeal, since the decree passed by the learned trial Court cannot be disturbed even if the defence sought to be raised is accepted to be duly proved and correct; the appellant would otherwise be unnecessarily embroiled in fruitless litigation.

Ratio / Principle

Even if the delay were condoned and the defence accepted as it is, the appellant would not be in a position to oppose the suit for possession on merits, since the alleged agreement is not by way of a written document and is obviously not registered; the date or even tentative period of the alleged agreement is not mentioned and the applicant admits to be a permissive occupant.

Key takeaways

The appellant cannot take shelter of Section 53-A of the Transfer of Property Act, the alleged agreement being oral, unwritten and unregistered.ratio¶14
The substantial question of law framed vide order dated 23/01/2026 is answered in favour of the respondent/plaintiff and against the appellant/defendant.ratio¶19

Detailed headnote1 paragraphs

Second Appeal dismissed (Rohit W. Joshi, J.; Bombay High Court, Nagpur Bench; neutral citation 2026:BHC-NAG:3594). The appellant had suffered an ex-parte decree for eviction and possession on 16/01/2017 in R.C.S. No. 164/2015; her first appeal was filed with ~170 days' delay and the first appellate Court (3rd Adhoc District Judge, Nagpur) rejected the condonation application (M.C.A. No. 563/2017) on 22/01/2020. Although in other circumstances the delay could have been condoned taking a lenient view of an elderly (about 64 years), illiterate litigant, this Court declined to allow the second appeal because the only defence on merits - occupation pursuant to an undated, unregistered oral agreement of sale with payment of Rs.70,000/- to the plaintiff's father, the appellant admitting permissive occupancy - could not, even if duly proved, resist the suit for possession; no shelter of Section 53-A of the Transfer of Property Act was available. Learned counsel for the appellant fairly conceded this was the only ground available. The substantial question of law framed on 23/01/2026 was answered in favour of the respondent/plaintiff. Time granted to the appellant to vacate the suit property till 28/02/2027.

1 21-sa 370.2025.odt

2026:BHC-NAG:3594

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

SECOND APPEAL NO. 370 OF 2025

( SMT. MEENA W/O SHANKAR KHAPEKAR VS SMT. MITHIL S/O DHANRAJ DOBAKAR )

Office Notes, Office Memorandum of Coram, appearances, Court's orders or the directions, Court's or Judge's order and Registrar's orders.

Mr. A.B. Moon, Advocate for appellant. Mr. A.A. Bansod, Advocate for respondent.

CORAM : ROHIT W. JOSHI, J. DATED : FEBRUARY 27, 2026

The present appellant has suffered an ex-parte decree for eviction and possession vide judgment and decree dated 16/01/2017 passed by the learned 2^nd Joint Civil Judge Junior Division, Nagpur in R.C.S. No.164/2015. The appellant/ defendant intended to challenge the said decree by filing appeal. However, there was a delay of around 170 days in filing of the appeal, for which a separate application for condonation of delay was filed. The said application came to be registered as M.C.A.No. 563/2017. The learned 3^rd Adhoc District Judge, Nagpur has rejected the said application vide order dated 22/01/2020. The appellant has stated in the application for condonation of delay that she is an old illiterate lady who was not aware about the Court procedure and that she had earlier engaged one Advocate to represent her in the said suit. He states that she had taken the case papers from the said Advocate and handed over to another Advocate to represent her in the suit. The contention is that despite engaging new Advocate the suit was not contested. The contention, in brief, is that if the appellant who is an old lady is not aware of the Court

KOLHE

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proceeding, she was not personally responsible for not contesting the suit on merits.

1. The learned first appellate Court has rejected the application for condonation of delay on the ground that the appellant being an illiterate lady cannot be considered to be a sufficient and good ground to condone the delay. The learned appellate Court has observed that the appellant did not file written statement in the suit and merely blamed her Advocates for not attending the proceedings in the civil suit.

The delay is of around 170 days. The appellant is lady aged around 64 years. Her age is mentioned as 55 years in the application for condonation of delay. Taking a lenient view of the matter, the delay could have been condoned. However, perusal of the application for condonation of delay as also the memorandum of appeal filed along with the application indicate that the only contention sought to be raised is that the applicant was placed in possession of the suit property by the father of the plaintiff pursuant to an oral agreement of sale. It is contended that an amount of Rs.70,000/- was paid by her to the plaintiff’s father in terms of the said oral agreement. However, perusal of the application and memorandum of appeal demonstrates that the date or even tentative period of alleged agreement is not mentioned. The applicant admits to be a permissive occupant and claims right to retain the possession on the basis of oral agreement of sale. Therefore, even if the delay is condoned and the defence raised is accepted as it is, the appellant will not be in a position to oppose the suit for possession merits since the alleged agreement is not by way of a written document and it is obviously not registered. The appellant therefore, cannot take shelter of Section 53-A of the Transfer of Property Act.

KOLHE

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1. Learned counsel Mr.Moon, fairly sates that this is the only ground on which the decree for possession can be opposed on merits.

1. In view of the aforesaid although in other circumstances, the application could have been allowed, having regard to the defence that the appellant intends to take on merits of the case, this Court is not inclined to allow the appeal, since the decree passed by the learned trial Court cannot be disturbed even if the defence sought to be raised is accepted to be duly proved and correct. The appellant will be unnecessarily embroiled in fruitless litigation, if delay is condoned.

1. In that view of the matter, substantial question of law framed vide order dated 23/01/2026 is answered in favour of the respondent/plaintiff and against the appellant/defendant.

1. In the peculiar facts of the case, the appellant is granted time to vacate the suit property till 28/02/2027 .

( ROHIT W. JOSHI, J. )

KOLHE Signed by: Mr. Ravikant Kolhe Designation: PA To Honourable Judge Date: 04/03/2026 18:03:23