1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 242 OF 2010 WITH CIVIL APPLICATION NO. 5165 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM : P.R. BORKAR.J. DATED : 30.04.2010 Heard Mr. S.H. Tripathi, Advocate for the appellant. 2. This appeal is preferred by the original plaintiff who had filed R.C.S. No. 184/1998 for injunction simplicitor and after suit was dismissed on 20-11-2000 by the Joint Civil Judge, Junior Division, Chalisgaon, he filed R.C.A. No.216/2000 in the District Court,Jalgaon. Pending appeal, he added prayer for specific performance of the agreement of sale. The second appeal is filed mainly on the ground that the relief of specific performance was refused but in stead the relief for refund of amount is allowed. 3. In this case, the learned Advocate has taken me to the judgment 2 of the first appellate Court. The first appellate Court has made discussion in Para-9 that the transaction between the parties is more of a nature of loan and land was given as security. The District Court has observed that it is an agreement of conditional sale executed on 18-05-1963 between the plaintiff and Lukadu Bhaga- the predecessor in title of the present respondent. It is stated that permission of Collector would be obtained for execution of the sale deed. The amount of Rs.2000/- was paid to Lukadu. On repayment of the said amount, the agreement would stand cancelled and possession would be delivered back. It is further stated that until amount of Rs.2000/- was paid to the plaintiff-appellant, he was entitled to crops in the field as well as possession and same would not be obstructed. It is also stated that until amount of Rs.2000/- was repaid, payment would be encumbrance on the land and on repayment if there is avoidance in executing the sale deed by the plaintiff, the defendant would be entitled to approach the Court. So, from all these, it was held by the 3 District Court that the transaction was in the nature of loan beween the plaintiff and Lukadu Bhaga and the plaintiff had lent Rs.2000/- to Lukadu Bhaga and document was obtained as security for loan. 4. It is worthy to note that original suit was not for specific performance but it was necessarily for injunction simplicitor. Considering the facts and circumstances, it does not appear that discretion is not reasonably used. No substantial question of law arises in the second appeal. In this view of the matter, the second appeal is dismissed at the stage of admission. 5. In view of the dismissal of the second appeal, Civil Application No. 5165 of 2010 does not survive, and hence, is disposed of as such. [P.R. BORKAR,J.] sut/APR10/sa242.10