1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.33 OF 2010 WITH CIVIL APPLICATION NO.70 OF 2010 A N D SECOND APPEAL NO.45 OF 2010 WITH CIVIL APPLICATION NO.116 OF 2010 Dinkar Khanderao Boraste (since deceased through Lrs. ) Shri Nivrutti Dinkar Boraste & Ors. )..Appellants Vs. Shri Motiram Santu Boraste & Ors. )..Respondents ---- Mr. Girish R. Agarwal for the appellants. Mr.R. N. Gite for the respondent nos.1 to 8. ---- Coram : R.S.MOHITE,J Date : 15th February, 2010 PC 1 Since both these appeals arise from a common judgment and order, the same are being disposed off by this common order. 2 These are the Second Appeals filed by the original plaintiffs. The plaintiffs had filed a suit for specific performance of an agreement of sale dated 19.2.1971. It is not in dispute that under the said agreement, possession was granted and the grant of possession was mentioned in the agreement itself. The consideration for the proposed sale was Rs.500/-. 2 It is also not in dispute that the amount of Rs.300/- came to be paid at the time of execution of the agreement. The agreement provided that the sale was to be completed within a period of two years. The vendor had agreed to obtain a permission under the Consolidation Act. The record indicates that the plaintiffs did not take any steps till they filed a suit for specific performance on 26.6.1987. That suit mentions that the proposed sale was for consideration of Rs.1600/-. The case of the plaintiff is when he filed the said suit he did not have in his possession the agreement dated 19.2.1971. He therefore, withdrew that suit on 26.6.1997 with liberty to file a fresh suit. That thereafter when he discovered the agreement dated 19.2.1971, he filed a second suit on 14.2.1997. The defendant had filed a counter claim for possession of the suit land. That suit came to be decreed by the trial Court which also dismissed the counter claim filed by the defendant. The appeal Court reversed the findings and decreed the plaintiff’s suit and allowed the counter claim. The plaintiffs were directed to deliver the possession of the suit land to the defendants within a period of three months. 3 On perusing the judgment passed by the appellate Court, I find that one of the issues decided against the plaintiff by the Appellate Court was that they were not ready and willing to perform their part of the contract. I find that on the facts of this case, the appeal of the plaintiffs must fail on this ground since there is a good and cogent reason for deciding this issue against the plaintiffs. The record indicates that the suit agreement was executed on 19.2.1971. The first suit was filed after a delay of 16 years. All this while the plaintiffs remained in possession of the suit land but took no steps to get the defendants to specifically perform the agreement dated 19.2.1971. It is contended that in the year 1977 there was a notification which prohibited transfer and that the suit was filed after the said 3 condition was relaxed. Even assuming that was so, there is a complete inaction on the part of the plaintiffs for a period of six years. According to the Advocate for the appellants the balance amount of Rs.200/- came to be paid during this period. This fact was however, being dis-believed by the appellate Court. It is true that mere delay may not preclude defendants from filing the suit for specific performance but in a case where the plaintiffs have been put in possession, defendants are deprived of the use of the land and this coupled with the fact that the agreement indicated that the transaction should be completed within two years, the inaction on the part of the plaintiffs to make even inquiries with the defendants as to whether they have applied for any permission or the fate of any application, and their continuance in the possession of the land without any action to enforce the agreement for years together is a fact that must influence the findings of the readiness and willingness of the plaintiffs as well as their rights to enforce specific performance of the contract. Advocate for the appellants/plaintiffs relied upon a judgment of the Supreme Court in the case of Mahadeva & Ors Vs. Tanabai reported in AIR 2004 SC 3854. The facts of the case before the Supreme Court were completely different. The suit was not for specific performance but the plaintiffs had claimed title by adverse possession since they were in possession for a period of 37 years. In such circumstances, the Apex Court held that merely because the suit for specific performance at the instance of the vendee is barred by limitation that by itself is not enough to deny the benefit of the plea of part performance of agreement of sale to the person in possession. In such circumstances, the findings of the High Court in that case dismissing the plaintiff’s suit were set aside and the case was remanded for re-consideration. The facts of the present case are totally different. In the circumstances, in my view, there is no substantial questions of law involved in these appeals. Hence, both these appeals are dismissed. 4 CIVIL APPLICATION NO.70 OF 2010 A N D CIVIL APPLICATION NO.116 OF 2010 As the main appeals are dismissed, these Civil Applications do not survive and stands disposed off accordingly. (R.S.MOHITE,J) 5