1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.333 of 2008. Nandkishore Prabhakar Niharkar ..vs.. Ramdas Natthuji Bhagat =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.S.S.Sitani, Adv. for the appellant. Mr.J.B.Kasat,Adv. for respondent no.1. Mr.H.R.Dhumale, Adv. for resp.2 and 3. C ORAM : C.L.PANGARKAR, J. DATED : 17th September, 2009. 1. This is a second appeal by the original defendant nos.3 and 4. Respondent no.1 Ramdas had instituted a suit for Specific Performance of Contract against the present appellant and respondent nos.2 and 3. It is the case of respondent no.1 Ramdas that he along with defendant nos.2 and 3 had entered into a contract of purchase of the suit field with defendant no.1 Dnyneshwar. It is his case that it was agreed that the property shall be sold to them by defendant no.1 for consideration of Rs.1,35,000/- and they had paid Rs.35000/- to defendant no.1. It was also his case that he was always ready and willing to perform his part of contract but 2 defendant no.1 in collusion with defendant nos.3 and 4 executed a sale-deed in favour of defendant nos.3 and 4 on 17/1/1996 when it was actually agreed that the sale-deed in favour of the plaintiff and defendant nos.2 and 3 would be executed on or before 9/5/1996. The said suit was resisted by the defendants. It was the contention of defendant nos.1, 3 and 4 that in fact plaintiff Ramdas and defendant no.2 Rajendra did not have sufficient funds to purchase the suit property and contribute towards consideration. It was also contended by them that, therefore Ramdas and Rajendra in fact consented to the sale-deed being executed in favour of defendant nos.3 and 4 and accordingly defendant no.1 so executed the sale-deed. 2. The plaintiff, who had agreed to purchase the property along with defendant nos.2 and 3, filed the suit for specific performance. 3. The learned judge of the trial court found that the plaintiff and defendant nos.2 and 3 entered into contract of purchase of the suit property with defendant no.1 and plaintiff was ready and willing to perform his part of the contract. She negatived the contention of the defendants that the plaintiff had even consented to execute the sale-deed in favour of defendant nos.3 and 4. Holding so, he decreed the suit. Feeling aggrieved thereby, defendant nos.3 and 4 preferred an appeal before the District Judge. The District Judge also 3 concurred with the findings recorded by the trial court and dismissed the appeal. 4. I have heard the learned counsel for the appellant and the respondent. 5. The learned counsel for the appellant submits before me that the decree passed by the courts below is not correct, inasmuch as there is no privity of contract between defendant nos.3 and 4 and plaintiff Ramdas. He submits that when there was no privity of contract, there was no question of defendant nos.3 and 4 being directed to execute the sale- deed. In this regard, it is brought to my notice that such a ground was not raised by the present appellant before the District Judge. In view of the fact that such a ground was not raised before the District Judge, it cannot certainly be raised for the first time. Even otherwise, I find that the first appellate court has considered all the aspects. She has found as a fact that the defendants have failed to show that the plaintiff had ever consented to get sale-deed executed in favour of defendants no.3 and 4. She also found that no such document showing consent or novation of contract is filed. It seems that the learned judge of the first appellate court has rightly appreciated this fact. 6. It was next contended by the learned counsel for the appellant that the plaintiff had not tendered any kind of 4 evidence to show that he has had sufficient fund for purchase of property and in absence of such evidence the court should not have held that the plaintiff was ready and willing to perform his part of contract. In this regard, it may be noted that this is purely a question of fact and there are two concurrent findings of fact in that regard. It has been held by courts below that the plaintiff was always ready and willing to perform his part of contract. This being a question of fact, it cannot be agitated in the second appeal. In view of this, I do not find that there is any substance in the appeal. The appeal is, therefore, dismissed in limine. JUDGE. chute