1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 410 OF 2010 Manohar s/o. Yedaba Bedke ....Appellant. Versus Pravin s/o. Pandurang Bedke ....Respondent. Mr. M.P. Kale, Advocate for appellant. Mr. N.L. Jadhav, Advocate for respondent. With SECOND APPEAL NO. 411 OF 2010 Manohar s/o. Yedaba Bedke ....Appellant. Versus Pandurang s/o. Vishwanath Bedke ....Respondent. Mr. M.P. Kale, Advocate for appellant. Mr. N.L. Jadhav, Advocate for respondent Nos. 2 and 3. CORAM: S.V. GANGAPURWALA, J. DATED: 14th September, 2010. PER COURT : 1. The present appellant/original plaintiff - Manohar had filed a suit for specific performance of contract on the basis of an agreement executed by Pandurang. So also, Pravin son of Pandurang has filed a suit for possession against the present appellant - Manohar in respect of the same property. The suit of the appellant - Manohar for specific performance of contract was dismissed by both the Courts below and 2 the suit of Pravin for possession came to be decreed by the Courts below. 2. Shri. Kale, learned counsel for the appellant contended that when the appellant has proved the agreement and the fact that he has parted with the consideration amount, there was no impediment for the Courts below to grant relief of specific performance. According to him, the appellant has also proved the legal necessity and that he was ready and willing to perform his part of the contract. He further submitted that the father has every right to deal with such ancestral property and the son could not have obstructed the said transaction. 3. The relief of specific performance is a discretionary relief. Both the Courts have exercised their discretion and directed the appellant Manohar to deliver the possession of the disputed property in a suit for possession and in a suit for specific performance, instead of main relief, granted alternate relief and directed the defendant to repay the earnest money with interest. It is admitted fact that the suit property is ancestral and partition between the co-sharers has not been proved. In such circumstances, when the partition has not taken place, the defendant No. 1 Pandurang could not have exclusively dealt with the property and the appellant Manohar has not claimed a relief of partition along with the relief of specific performance as contemplated under section 22 of Specific Reliefs Act, then in such circumstances, the discretion exercised by the Courts below in not granting the relief of specific performance 3 cannot be faulted with. When the suit for specific performance came to be dismissed, the necessary consequences would be the possession to be delivered back. 4. In the light of the same, no substantial question of law arises. As such, the second appeals are dismissed, however, with no order as to costs. 5. Shri. Kale, learned counsel for the appellant states that he would like to take appropriate steps in respect of the present order and prays for suspending the said order for the period of four weeks. In the light of the prayer made the present order is stayed for the period of four weeks. 6. In view of dismissal of second appeal, the civil applications, if any, does not survive, stands disposed of as such. [ S.V. GANGAPURWALA, J.] ssc/fa410.10