1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.68 OF 2011 Mr. Umaji s/o Dewaji Tawade Versus Smt. Shantabai Namdeo Kokode and others _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri S.A. Giri, Advocate h/f Shri Rajnish Vyas, Advocate for the appellant, Shri V.N. Morande, Advocate for respondent Nos. 1,2 & 4, None for respondent No.3. CORAM : R.M.SAVANT, J. DATED : 24.02.2011. The Second Appeal takes exception to the judgment and decree dated 30-3-2010 passed in Regular Civil Appeal No.69/2009, by which the decree passed in Special Civil Suit No.16/2009 came to be set aside. 2. The appellant herein is the original plaintiff and the respondents are the original defendants. The plaintiff had filed the suit for specific performance of contract in respect of .60 R. land, Survey No.366 of village Lanjenda. The plaintiff was relying upon the purported agreement to sale executed by the defendant Nos. 1 and 2 who have agreed to sell the suit property to the plaintiff for a consideration of Rs.50,000/-. But since they failed to execute the sale-deed, 2 the plaintiff was constrained to file the said suit. It was the case of the plaintiff that on 23-4-1997 a document was executed by the defendant after receiving Rs.30,000/- as earnest money and the same was executed in presence of two witnesses, one Sitaram Ramteke and Ganpati Kokode. As per the said agreement, the sale-deed was agreed to be executed on or before 23-4-1998. It was the case of the plaintiff that the possession was also delivered at the time of the execution of the said document and since the said date the plaintiff is in possession of the suit property in part performance of the contract. It is the case of the plaintiff that after the said agreement was executed, he has paid an amount of Rs.9,000/- on 18-3-1998, Rs.3,000/- on 13-8-1998 and Rs.2,000/- on 14-3-1998. A notice came to be issued to the defendants to remain present in the Sub- Registrar Office to execute the sale-deed. The defendants having failed to attend the said Sub-Registrar's Office, the plaintiff was constrained to file the suit. 3. The defendants filed their written statement and denied the execution of the document as well as the payment of Rs.30,000/- as earnest money by the plaintiff. The case of the defendants is one of denial. The defendants have also raised the plea that if the sale-deed is executed in faovur of the plaintiff, it would result in creating a fragment, which is prohibited by the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 4. The parties went on trial. The Trial Court on the basis 3 of the evidence on record and especially the revenue record, wherein the plaintiff's name was appearing in the cultivation column held that the plaintiff was in possession of the suit property in part performance of the contract. The Trial Court on the basis of the oral testimony held that the payment of Rs.30,000/- is also proved by the plaintiff, however the Trial Court was of the view that the amounts which were later on paid by the plaintiff could not be said to have been so paid. 5. Aggrieved by the decree passed by the Trial Court, the defendants filed Regular Civil Appeal No.69/2009. The First Appellate Court was of the view that there was no covenant in the sale-deed that the plaintiff was put in possession of the suit property. The First Appellate Court was of the view that the evidence of the witness, who was the nephew of the plaintiff, could not be relied upon as he was an interested witness. Moreover, according to the First Appellate Court, since he has stated he was not present at the time of execution of the document, the decree passed on such evidence could not be sustained. The First Appellate Court was of the view that theory of the plaintiff paying an amount of Rs.30,000/- as well as the further amounts paid by him in the year 1998 did not inspire confidence, which has also been held by the Trial Court. The First Appellate Court, therefore, recorded findings of fact on the aforesaid aspects. In my view, considering the findings of fact recorded by the First Appellate Court, no substantial question of law, arises for consideration in the Second 4 Appeal, which is accordingly dismissed. JUDGE pma