: 1 : sa.3.2011.. vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.3 OF 2011 Shri Dagadu Ganpati Shinde .. Appellant V/s. Shri Bhimrao Natha Kadam & Ors. .. Respondents a/w SECOND APPEAL NO.4 OF 2011 Shri Dagadu Ganpati Shinde .. Appellant V/s. Shri Bhimrao Natha Kadam & Ors. .. Respondents Mr.Vaibhav Sugdhare a/w Pramod Keni I/b M/s.Thakordas and Madgavkar for the Appellant Mr.Vaibhav Joglekar I/b Vinod S. Sakpal for the Respondent Nos.1, 3 and 4 CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 22, 2011 P.C.: 1. Both these appeals are directed against the judgments of the Principal District Judge, Sangli in Regular Civil Appeal No.319 of 2001 and Regular Civil Appeal No.323 of 2001. These appeals were filed to impugn the decisions of the trial Court in RCS No.142 of 1989 and RCS No.18 of 1990. The Appeal No.319 of 2001 arises from the decree : 2 : sa.3.2011.. passed in RCS No.18 of 1990 and Appeal No.323 of 2001 from the decision in RCS No.142 of 1989. 2. Suit No.142 of 1989 was filed by the respondent herein for a reconveyance of the agreement of sale dated 29.6.1977 and for a decree of possession of the suit property on the payment of earnest money of Rs.8,250/- to the purchaser. The trial Court by its decision dated 17.9.2001 has decreed the suit and directed the appellant i.e., defendant No.1 to deliver possession of the suit property to the plaintiff within 60 days. This judgment was challenged by defendant No.1 i.e. the appellant herein. Cross objections were also preferred by the plaintiff. Both the Appeal No.323 of 2001 and the cross objections were dismissed by the appellate Court. 3. The appellants herein filed a suit for specific performance of agreement dated 29.6.1977 and/or alternatively for a refund of earnest money of Rs.8,250/-. The prayer for specific performance of the agreement was negated. Appeal No.319 of 2001 filed by the appellant herein has been dismissed. 4. The learned advocate for the appellant criticised the judgment : 3 : sa.3.2011.. of the appellate Court which has decided both the appeal Nos.319 of 2001 and 323 of 2001 by order dated 28.9.2010 by submitting that the appellate Court has not framed proper points for consideration of the appeals. He points out that the appellate Court has ignored the issues framed by the trial Court in RCS No.142 of 1989 while dealing with the appeal. These issues were as follows: 1) Do the plaintiffs prove that their father executed agreement to sale cum mortgage deed to the defendant? Partly in the affirmative and partly in the negative 2) Do they prove that the defendant acquired possession over the suit property illegally? In the negative 3) Do they prove that defendant is refusing to redeem the agreement to sale cum mortgage deed? Does not survive 3A) Is the plaintiff alternatively entitled for possession of the suit property from the defendant No.1? In the affirmative 4) Are they entitled for the reliefs as prayed by them? In the affirmative 5) Is the suit bad for non joinder of necessary partes? Does not survive 6) What order and decree? As per final order 5. The issues raised by the trial Court in Suit No.18 of 1990 are as follows: : 4 : sa.3.2011.. 1) Does Plaintiff proves that father of Defendant No.1 executed agreement to sale with intention to sell the suit lands to plaintiff? In the affirmative 2) Does defendant No.1 prove that his father executed agreement to sale in favour of plaintiff for security to loan transaction? In the negative 3) Does plaintiff prove his possession over suit property on the basis of Agreement to sale? In the affirmative 4) Whether plaintiff is ready and willing to perform his part of contract? In the negative 5) Is Plaintiff entitled to relief sought? In the negative. 5a) Is plaintiff alternatively entitled for refund of earnest money In the affirmative 5b) Whether the suit within limitation? In the negative 6) What order and decree? As per final order. 6. The points for consideration framed by the appellate Court are as follows: 1) Whether the transaction between Natha and Dagadu is an agreement to sell the suit property? Yes 2) Whether Dagadu has proved that he was and is always ready and willing to perform his part of contract? No 3) Whether the suit for specific performance is within limitation? No 4) Whether Dagadu is entitled for specific performance of the contract? No : 5 : sa.3.2011.. 5) Whether Dagadu is entitled to retain his possession over the suit property? No. 6) Whether the respondents are entitled for mesne profits ? No. 7) What order? As per final order 7. On a close scrutiny of the aforesaid points, it is obvious that the appellate Court has failed to consider the issues raised before the trial Court in R.C.S. No.142 of 1989 and has merely dealt with the issues framed in R.C.S. No.18 of 1990. It is an obvious error which is required to be rectified. In my opinion, in the interest of justice, it would be appropriate to remand the appeals to the appellate Court to decide them afresh. 8. Mr.Joglekar, learned Counsel appearing for the respondent in the present second appeals, submitted that the decision of the appellate Court should be confined only to the RCS No.18 of 1990 as it deals with those issues. However, this cannot be done as the appellate Court has by a common judgment decided both the appeals and it would not be for this Court while exercising jurisdiction u/s 100 of the C.P.C. to decide to which appeal the decision of the appellate Court should be confined. : 6 : sa.3.2011.. 9. In these circumstances, the Appeals are allowed. Regular Civil Appeal Nos.319 of 2001 and 323 of 2001 are remanded to the District Court, Sangli for a fresh hearing. Since the Suits were filed in 1989 and 1990 and the Appeals are of the year 2001, the Appeals shall be decided within a period of six months from today. 10. In view of the above, Civil application Nos.1947 of 2010 and 1948 of 2010 do not survive and the same are disposed off accordingly. (SMT.NISHITA MHATRE, J.)