1 SA353/03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 353 OF 2003 Narsappa s/o Rama Ghodke & Anr. Appellants V E R S U S Narayan s/o tukaram Sarvade Respondent Shri S.B. Bhapkar, Advocate for the appellants Respondent though served, absent CORAM : A.V. NIRGUDE, J. DATED : 17th August, 2011 ORAL ORDER : 1. This second appeal is challenging concurrent findings of the Courts below that the respondent / plaintiff was entitled to a decree of specific performance of contract executed by appellant No. 1. The learned Courts below held that the agreement was proved and that appellant No. 1 being karta of the joint family, could have agreed to sell the suit property on account of debts which he had incurred prior to the agreement. 2. The learned Advocate appearing for the appellants argued firstly that the learned Judges of the lower Courts did not pay attention to the defence that the defendant was in fact not owner of the suit property on the day of agreement. I am afraid, this is a wrong submission, becase the Courts below extensively discussed this aspect of the case. In addition, defendant No. 1, by entering the witness box, admitted in his examination-in-chief itself 2 SA353/03 that he was karta of the family and the suit property belonged to him, and was ostensibly shown in the name of his grand-children, and that, at the time of agreement, he was in need of funds to repay the debts. The Courts below accepted this evidence and rightly so and gave the finding on this issue. 3. The learned Advocate appearing for the appellants then asserted that the agreement was in respect of a piece of land, admeasuring only 10 gunthas, and since it was an agricultural land, such a transaction was impermissible in view of Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The Courts below took into account this objection and held that the sale would not be affected by the said provisions, because the land is already used for non-agricultural purpose. 4. The learned Advocate for the appellants then asserted that the Courts below still committed an error in using their discretion as provided under Section 20 of the Specific Relief Act in granting the decree. The learned Advocate for the appellants pointed out that his clients while were before the first appeal Court have raised this plea specifically and yet the learned Judge of the first appeal Court did not consider it independently. No doubt, the learned Judge of the first appeal Court did not frame a point for consideration based on this question. However, if we read the Judgment of the first appeal Court, it clearly exhibits proper application of mind on the part of learned Judge of the first appeal Court and use of discretion for decreeing the suit for specific performance of contract. The learned Judge of the first appeal Court discussed the facts of the case quite elaborately for 3 SA353/03 coming to such conclusion. The second appeal should therefore fail. There is no substantial question of law arises in this appeal. Second Appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/353/10317/8/11