( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 294 OF 1990 Sambhaji s/o. Dattaram Tidke .. Appellant Age. 49 years, Occ. Agriculture, [Ori. plaintiff] R/o. Bodhan Tarfe Hawali Tq. & Dist. Nanded. Versus 1) Amirbin Abdul Aziz d/o. Akbar Chous .. Respondents R/o. Darbar Masjid, Nanded. [No.1 Ori. Def.] [Appeal dismissed against Res. No.1 vide order dated 12.11.1997] 2. Shaik Ahmed Shaikh Hussain, Age. Major, R/o. Sangam Tent, Degloor Naka, Nanded. Shri K.B. Autade h/f. Shri K.G. Patil, Advocate for the appellant. Shri Y.M. Khan h/f. Shri K.G. Khader, Advocate for respondent No.2. CORAM : P.R. BORKAR,J. DATED : 02.07.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original plaintiff whose suit for specific performance of contract and injunction was dismissed by the IV Jt. Civil Judge, Junior ( 2 ) Division, Nanded, while deciding Regular Civil Suit No.270 of 1982 on 25.01.1984. Said judgment and decree is further confirmed in appeal bearing Regular Civil Appeal No.68 of 1984 by IV Additional District Judge on 25.10.1984. 2. It is case of the appellant that respondent No.1 is owner and possessor of the suit plot. The plaintiff entered into agreement of sale with respondent No.1 on 12.04.1968 and agreed to purchase the said plot of 25' x 60' out of Survey No.167 situated at Degloor Road, Nanded for Rs.5000/-. Rs. 2500/- were paid as earnest money on that day. The respondent No.1 was to execute sale-deed. The plaintiff was put into possession of the property. It was agreed that the registered sale-deed was to be executed after obtaining N.A. Permission, and after sanction of lay out plan by the concerned authorities. Since, no sale-deed was executed, ultimately the suit was filed. Respondent defendant filed written statement at Exh.33 and resisted the claim. 3. This Second Appeal is admitted on 11.09.1990 on the following substantial questions of law:- ( 3 ) (i) Whether contract is contingent? (ii) Whether description under Section 20 of the Specific Relief Act is judicially exercised? 4. The Trial Court held that actual possession was not delivered and in the agreement of sale Exh.39 words “Plot war Tumcha Taba Rahil” (you will be in possession of the plot) were inserted subsequently and it is fabrication of document and this is one of the main reasons why specific performance was refused. It is also stated while discussing issue No.2 in paras 8 to 9 that N.A. Permission was not granted and lay out permission was also not granted by the concerned authorities. In these circumstances, it cannot be said that specific performance ought to have been allowed. 5. The First Appellate Court considered issue of limitation. It observed that the date of agreement was 12.04.1968 and the suit was filed on 29.04.1982 and there was no satisfactory explanation why plaintiff kept mum for a such long period. In para 14 it is stated that in deposition that was recorded on 14.11.1983 the plaintiff stated that five years prior to his deposition he had requested the defendant to execute sale-deed in his favour, but the defendant ( 4 ) refused. So, the refusal was in 1978 and therefore suit was filed on 29.04.1982 was time barred. There is nothing on record to show that atleast subsequently prior to the filing of the suit or during pendency of the suit, N.A. permission was granted and lay out plan was sanctioned. Therefore, prayer for specific performance can not be granted. There are no necessary pleadings before the Trial Court and so no issue was framed regarding refund of earnest money. 6. In these circumstances it is not case where interference is called for in the Second Appeal. The appeal deserves to be dismissed. Hence, the Second Appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa294.90