1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 503/2007 (Parasram Kaniram Jadhao VERSUS Laxminarayan Dagdulal Somani & another) WITH Second Appeal No. 504/2007 (Parasram Kaniram Jadhao VERSUS Laxminarayan Dagdulal Somani) WITH Second Appeal No. 505/2007 (Smt. Parvatibai Sheshrao Rathod VERSUS Laxminarayan Dagdulal Somani & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri S.B. Solat, counsel for the appellant. Shri B.N. Mohta, counsel for the R-1. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 9, 2008. Heard Shri S.B. Solat, the learned counsel for the appellant and Shri B.N. Mohta, the learned counsel for the respondent no.1. Since these three second appeals arise out of acommon judgment passed by the trial as well as the first appellate Court, they are being heard and finally decided at the stage of admission by this common order. The appellant is the original plaintiff in Regular Civil Suit No.175/1988. According to the appellant/original plaintiff Parasram in Regular Civil Suit No.175/1988, the document allegedly executed between appellant Parasram and respondent Laxminarayan on 30.01.1987 was 2 null and void and was not a genuine agreement of sale. It was the case of plaintiff Parasram in Regular Civil Suit No.175/1988 that the document dated 30.01.1987 reflected a loan transaction between the parties, and therefore, Parasram sought a declaration that the document dated 30.01.1987 be declared as null and void. Parasram also sought a direction to Laxminarayan, the original defendant, in Regular Civil Suit No.175/1988 to return the said document to Parasram. The claim of plaintiff Parasram in Regular Civil Suit No.175/1988 was denied by Laxminarayan. Laxminarayan also filed Special Civil Suit No.30/1988 against Parasram which was later on renumbered as Regular Civil Suit No.115/1999. By Regular Civil Suit No.115/1999, Laxminarayan sought a decree of specific performance of the contract of sale of property which was reflected by the agreement of sale dated 30.01.1987 executed between Parasram and Laxminarayan. It was the case of Laxminarayan that Laxminarayan was forever ready and willing to perform his part of the contract but, Parasram failed to execute a registered sale-deed in favour of Laxminarayan. An alternate prayer for refund of the earnest 3 amount was also made. It is needless to mention that Parasram denied the claim of Laxminarayan for a decree of specific performance of contract as also for the refund of the earnest amount. It appears that during the pendency of the proceedings, a part of the suit property was sold by Parasram in favour of Smt. Parvatibai, who is the appellant in Second Appeal No.505/2007 and who had filed a cross objection in the first appellate Court. As a matter of fact, during the pendency of the suit, Parvatibai was joined as party defendant no.2 to the civil suit filed by Laxminarayan but, Parvatibai did not file any written statement in Regular Civil Suit No.115/1999 (renumbered). The trial Court framed separate necessary issues in Regular Civil Suit No.175/1988 and Regular Civil Suit No.115/1999 (renumbered) and since the issue involved in the two civil suits were overlapping, both the suits were decided after tendering common evidence and by a common judgment. The trial Court dismissed the Regular Civil Suit No.175/1988 filed by Parasram. The trial Court, however, decreed the suit filed by Laxminarayan for specific performance of contract by decreeing the Regular Civil Suit No.115/1999 (renumbered). 4 Parasram challenged the common judgment by filing two separate appeals bearing Regular Civil Appeal Nos. 268/2001 and 269/2001. Both these appeals were heard together by the first appellate Court and the first appellate Court, by the common judgment dated 03.03.2007, dismissed both the appeals. It is necessary to note that Parvatibai, the appellant in Second Appeal No.505/2007, had filed a cross objection in Regular Civil Appeal No.269/2001. The appellate Court, however, held that the cross objection filed by Parvatibai was not tenable. These three second appeals are an outcome of the common judgments passed by the trial as well as the first appellate Court. It is submitted on behalf of the appellant by Shri Solat that the Courts ought to have considered that the document dated 30.01.1987 allegedly executed between Parasram and Laxminarayan reflected a loan transaction and was not a genuine agreement of sale. It is also submitted on behalf of the appellant Parasram that in any case, the Courts, in the facts and circumstances of the case, ought to have granted the alternate relief of refund of the earnest amount and ought not have granted a decree of specific performance of contract in 5 favour of Laxminarayan. On behalf of the appellant Parvatibai, it is submitted by the learned counsel that Parvatibai had purchased a part of the suit property during the pendency of the proceedings and Laxminarayan, in his suit for specific performance of contract, had not sought a declaration that the sale-deed executed by Parasram in favour of Parvatibai be declared as null and void or as cancelled. It is also submitted on behalf of Parvatibai that the appellate Court ought not have granted a decree for specific performance of contract in favour of Laxminarayan when the appellate Court had recorded a finding that the cross objection filed by Parvatibai was tenable. Shri B.N. Mohta, the learned counsel for respondent Laxminarayan, on the other hand, submitted that both the Courts have considered the entire oral and documentary evidence on record to hold that the document dated 30.01.1987 was a valid agreement of sale executed between Parasram and Laxminarayan. It is submitted on behalf of Laxminarayan that the Courts further recorded a concurrent finding of fact that Laxminarayan was ready and willing to perform his part of the contract and the document 6 dated 30.01.1987 did not reflect a loan transaction as canvassed by Parasram. It was also submitted on behalf of Laxminarayan that there was no necessity whatsoever for Laxminarayan to seek a declaration for cancellation of the sale- deed executed by Parasram in favour of Parvatibai as the transaction between Parasram and Parvatibai was clearly hit by the doctrine of lis-pendens. It is lastly submitted on behalf of the respondents that though it is wrongly recorded in paragraph 10 of the judgment of the appellate Court that the point about tenability of cross objection filed by Parvatibai was answered in affirmative, paragraphs 20 and 21 of the appellate Court's judgment clearly show that the point was answered in the negative and against Parvatibai and it was held that the cross objection filed by Parvatibai was not tenable. It is, thus, brought to the notice of this Court by the learned counsel for Laxminarayan that there was a typographical error while recording the finding on point no.5 in the appellate Court's judgment. The counsel for respondent Laxminarayan, therefore, sought the dismissal of all the three appeals. I have perused the judgments passed by the trial as well as the appellate Court. I have 7 also perused the substantial questions of law stated in the memorandum of all these three appeals. None of the questions stated as substantial questions of law in the memorandum of appeal in these three appeals are, in fact, substantial questions of law. Both the Courts have minutely considered the evidence tendered by the parties on record to categorically record a finding that the document dated 30.01.1987 was a genuine agreement of sale executed between Parasram and Laxminarayan and did not reflect a loan transaction as stated by Parasram. The Courts recorded a finding that the document dated 30.01.1987 was not an outcome of the money lending transaction between Parasram and Laxminarayan. The Courts then held that Laxminarayan was ready and willing to perform his part of the contract and in the facts of the case, since Laxminarayan was entitled to grant of main relief i.e. the relief of specific performance of contract, there was no question of Courts granting the alternate relief of refund of amount to Laxminarayan as canvassed by the counsel for the appellant Parasram in the two second appeals. The first appellate Court rightly held that the cross objection filed by Parvatibai was not tenable as though she may be a necessary 8 party to the appeal but, her rights were subject to the decision of the Courts in the suits filed by Parasram and Laxminarayan respectively. The findings recorded by both the Courts are pure findings of fact which do not give rise to any substantial question of law. Consequently, all the three second appeals are dismissed with no order as to costs. JUDGE APTE