( 1 ) FARAD CONTINUATION SHEET NO. IN THE COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.55/2005 Sushilabai W/o Rameshkumar Mishra. -vs- Ku.Kamal D/o Tikaram Chamat and anor... Office Notes, Office Memoranda of Coram, Appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders. CORAM : VASANTI A. NAIK, J. DATE : 17/06/2008 Heard Shri Borkar for the appellant and Shri Vastani for the respondent No.1. The appellant is the original defendant No.2. The suit was filed by the plaintiff/ respondent No.1 for seeking a decree for specific performance of the contract. According to the plaintiff, the defendant No.1 had agreed to sell the suit house to the plaintiff for a consideration of Rs.16,000/-. The agreement was executed on 03/05/1983. The plaintiff had paid an amount of Rs.11,800/- to the defendant as earnest money and the balance amount was payable at the time of execution of ( 2 ) the sale deed on 05/05/1984. It was pleaded by the plaintiff that the plaintiff was ever ready and willing to perform his part of the contract, but the defendant No.1 illegally executed a sale deed of the suit property in favour of defendant No.2 on 30/12/1988. The defendant No.1 filed his written statement and pleaded that the father of the plaintiff was doing a money lending business and the agreement dated 03/05/1983 was not in fact an agreement of sale, but reflected a loan transaction. According to the defendant No.1, he had taken a loan of Rs.5,000/- from the father of the plaintiff. The defendant No.2 pleaded that there was an agreement of sale executed by defendant No.1 in favour of Defendant No.2 on 1st January, 1983 i.e. before the execution of the alleged agreement of sale in favour of the plaintiff on 03/05/1983. On the aforesaid pleadings of the parties, the trial Court framed the issues and recorded categorical findings that the defendant No.1 agreed to sell the suit property to the plaintiff by the agreement dated 03/05/1983 and the plaintiff had paid an amount of Rs.11,800/- to the defendant No.1 in pursuance of the same. The Court further answered some of the issues in favour of the plaintiff, by holding that the plaintiff was ( 3 ) ready and willing to perform his part of the contract and the defendant No.1 had committed the breach of the same. However, the trial Court held that the sale deed executed by defendant No.1 in favour of defendant No.2 on 30/12/1988 was not illegal, as the defendant No.1 had entered into an agreement of sale with defendant No.2 on 01/01/1983 as pleaded by the defendant No.2. Hence, for the aforesaid reason only, the trial Court dismissed the suit of the plaintiff, so far as, the relief of specific performance of contract was concerned and granted the alternate relief of refund of earnest money to the plaintiff. Being aggrieved by the judgment passed by the trial Court, the plaintiff preferred a Regular Civil Appeal bearing No. 65/1997 before the District Judge, Gondia. The District Judge, Gondia confirmed some of the other findings of facts recorded in favour of the plaintiff so as to uphold the validity of the agreement of sale dated 03/05/1983 and the payment of earnest money. The Court confirmed the finding on readiness and willingness of the plaintiff to perform his part of the contract and the failure on the part of the defendant No.1 to perform his part of the contract. The First Appellate ( 4 ) court, on an appreciation of the material evidence on record, however, reversed the finding recorded by the trial court, so far as, it related to the execution of the agreement of sale by the defendant No.1 in favour of defendant No.2 on 01/01/1983. The court held that the agreement dated 01/01/1983 was not a genuine agreement of sale and the document was executed by the defendant Nos.1 and 2 merely with a view to defeat the genuine claim of the plaintiff. Having reversed the finding on the aforesaid issue, the First Appellate Court rightly exceeded its discretion in granting the relief of specific performance of the contract in favour of the plaintiff. The judgment passed by the Appellate Court is challenged in the instant appeal. Shri Borkar, learned counsel for the appellant submitted that the First Appellate Court was not justified in reversing the finding recorded by the trial Court on the execution of a valid agreement of sale between the defendant Nos.1 and 2 on 01/01/1983 i.e. prior to the date of the agreement of sale between the plaintiff and the defendant No.1 on 03/05/1983. It is further submitted on behalf of the appellant that the court ought to have held that the transaction between the ( 5 ) defendant No.1 and the plaintiff was a loan transaction. The submissions made on behalf of the appellant relate to the issues, which are purely the issues of fact and do not give rise to any substantial question of law. It has also not been demonstrated by the counsel for the appellant that the findings recorded by the First Appellate Court are perverse. None of the substantial questions of law stated in the memo of appeal are indeed substantial question of law. In this view of the mater, the second appeal is dismissed with no order as to costs. JUDGE gsk