1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION' SECOND APPEAL NO.840 OF 2007 WITH CIVIL APPLICATION NIO.901 OF 2008 Yadav Hari Pagire : Appellant. Versus Raosaheb Rangrao Jadhav : Respondent. ALONG WITH SECOND APPEAL NO.848 OF 2007 Yadav Hari Pagire : Appellant. Versus Raosaheb Rangrao Jadhav & anr : Respondent. Shri.Shankar P. Thorat for the Appellant. Shri.Dubey i/by M/s. Jay & Co. for the Respondent. CORAM : R.M.SAVANT, J DATED : AUGUST 28, 2008 P.C. 1. The above Second Appeals take exception to the Judgment 2 and Decree dated 13/9/2007 passed by the learned Additional District Judge, Niphad in Regular Civil Appeal Nos.57 of 2001 and 58 of 2001 whereby the Decree dated 29/6/2001 passed by the trial Court i.e. Civil Judge, Junior division, Yeola in Regular Civil Suit Nos.123 of 1986 and 246 of 1995 was confirmed. 2. The Appellant, in both above Appeals, is the original Defendant in Regular Civil Suit No.123 of 1986 filed by the Respondent herein for specific performance of an agreement for sale dated 11/10/1982 in respect of 40 R land in village Andarsul, Tal.Yeola, Dist.Nashik, and is the original Plaintiff in Regular Civil Suit No.246 of 1995 which was filed by him for seeking possession of the said land in question. 3. In so far as Regular Civil Suit No.123 of 1986 is concerned, it is the case of the Respondent/Plaintiff that pursuant to a lease deed, executed by the Appellant/Defendant in the year 1974, which was for a period of 10 years, that he was put in possession. The said lease was to enure to the benefit of the Plaintiff in the said suit till the year 1984. However, prior thereto by an agreement for sale dated 3 11/10/1982 the Appellant/Defendant agreed to sell the said property for a sum of Rs.25,000/­ to the Plaintiff of which Rs.10,000/­ was paid by the Plaintiff at the time of the Agreement. In terms of the recitals in the said Agreement for sale and especially clause (2) thereof, the payment of balance amount of Rs.15,000/­ was to be made within 6 months of the said agreement. It is the case of the Plaintiff that he issued a notice on 6/4/1983 and called upon the Appellant above named to abide by the terms of the said agreement dated 11/10/1982. The said notice was replied to by the Appellant by his Reply dated 16/4/1983 where he denied the execution of the said agreement and contended that the said agreement was got executed by the Plaintiff on the pretext that he is executing the renewal of the lease deed. The Plaintiff thereafter by another notice dated 28/4/1983 once again called upon the Appellant/Defendant to abide by the said agreement dated 11/10/1982 and execute the sale deed in favour of the Plaintiff. In the said Regular Civil Suit No.123 of 1986, the Appellant/Defendant had filed his written statement and denied the execution of the said agreement for sale dated 11/10/1982 and reiterated what he had 4 stated in his reply that on the pretext of renewal of the lease deed that the said agreement for sale was got executed from him without his knowledge. 4. The parties went to trial. Significantly in his oral evidence the Appellant/Defendant changed his stand by accepting execution of the said agreement. 5. The trial Court on the basis of the oral and documentary evidence and especially the two notices issued by the Plaintiff and considering the financial wherewithal of the Plaintiff recorded a finding that in spite of readiness and willingness of the Plaintiff to abide by the terms of the Agreement, the Appellant had failed to perform his part of the contract and, therefore, decreed the suit filed by the Respondent being Regular Civil Suit No.123 of 1986 and granted the relief sought i.e. Relief of specific performance of the said agreement dated 11/10/1982. 6. Since during pendency of Regular Civil Suit No.123 of 5 1986, the Appellant/Defendant had filed a suit being Regular Civil Suit No.246 of 1995 on the ground that since the period under the lease deed dated 9/4/1974 had come to an end in the year 1984, the Defendant in the said suit i.e Respondent herein was obliged to hand over the possession of the said suit property. Since the issue related to the same suit property and since the parties were the same, both the suits were tried together. In so far as Regular Civil Suit No.246 of 1995 is concerned, the trial Court held that since the lease hold rights under the lease have merged in the contractual rights under the Agreement for Sale and since the Agreement for Sale was proved and since the trial Court had granted specific performance of the said agreement, the Plaintiff in the said Regular Civil Suit No.246 of 1995 could not be granted the relief sought for and, therefore, dismissed the said suit. 7. Being aggrieved by decreeing of Regular Civil Suit No.123 of 1986 and dismissal of Regular Civil Suit No.246 of 1995, the Appellant above named filed two First Appeals in the District Court 6 being Regular Civil Appeal Nos.57 of 2001 and 58 of 2001. 8. The lower Appellate Court confirmed the findings of the trial Court as regards the readiness and willingness of the Plaintiff to comply with the terms of the agreement for sale dated 11/10/1982 as also confirmed the findings of the trial Court in the said Regular Civil Suit No.246 of 1995 that since the lease hold rights have merged in the contractual rights under the said agreement for sale, the Plaintiff in the said Regular Civil Suit No.246 of 1995 was not entitled for the relief sought. 9. It is sought to be contended on behalf of the Appellant that both the Court's below have erred in recording a finding that the Plaintiff was ready and willing to perform his part of the contract. Both the Courts below have also erred in holding that the Plaintiff has financial capacity to pay balance amount of Rs.15,000/­ . The learned counsel for the Appellant relies upon the judgments of this Court as well as the Apex Court in support of his contention that the specific 7 performance can only be granted after the Court is satisfied about the readiness and willingness of a party seeking specific performance to perform his part of the contract. 10. In my opinion, both the Courts below having recorded finding of facts as regards the readiness and willingness of the Plaintiff to perform his part of the contract, the submissions made on behalf of the Appellant cannot be accepted. 11. The challenge raised in the above Second Appeal does not involve any substantial question of law. Both the Second Appeals are accordingly dismissed. In view of dismissal of the Second Appeals, the Civil Application No.901 of 2008 does not survive and the same is disposed of as such. [R.M.SAVANT, J]