* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 299 OF 1989 1. Vishwanath Maruti Jote since decd.thru.his LRS 1(a) Smt.Pramila Vishwanath Jote 1(b) Shri.Surendra Vishwanath Jote 1(c) Shri.Vijay Vishwanath Jote 1(d) Sou.Shilpa Shrikant Memkundale 1(e) Sou. Nila Ramesh Adgale 1(f) Sou.Kamala Sharad Dube 1(g) Sou.Ujwala Ravindra Tambade .....Appellants/ (Orig.Plffs.) vs. 1. Maruti Bandu Gharal 2. Kashinath Maruti Jote since decd.thru his LRS 2(a) Shashikala Baburao Shetye 2(b) Shrikant Kashinath Jote 2(c) Shri.Ramesh Kashinath Jote 2(d) Sou.Surekha Sadashiv Patil 2(e) Shri.Dipak Kashinath Jote 2(f) Sou.Mangal Mahadev Lathe .....Respondents/ (Orig.Defds no.1-6) ======== Mr.Rajesh Parab h/f.Mr.D.S.Sawant,Advocate for Appellants. Mr.Rajesh Kachare with Mr.Ravi Kadam, Advocate for respondents. Coram : Smt. R.P.SondurBaldota, J. Date : 30th June, 2009 PC :- * 2 * 1. This Second Appeal arises out of the judgment and order dated 14th June, 1988 passed by the District Court, Satara dismissing Regular Civil Suit No.255 of 1982. The said civil appeal was filed to challenge the judgment and decree dated 29th July, 1982. 2. The appellants are the heirs and legal representatives of the original plaintiffs Vishwanath and Kashinath. The respondents are the original defendants. During the pendency of the appeal, respondents no.3 and 4 died and the suit against them stands abated. 3. The brief facts pleaded by the appellants in the plaint are as follows :- . They are the owners of land at Survey No.69/5A plus 6B plus 7C admeasuring 6 acres and 22 gunthas situated in village Kole, Taluka-Karad. In the year 1963, the appellants were in need of money. Therefore, by the agreement of sale dated 2nd September, 1963 they agreed to sell a portion of their property admeasuring 1 acre 10 gunthas situate on eastern portion for the consideration of Rs.10,000/- to one Bandu Gharal. At the time of execution of the agreement of sale, Bandu had paid amount of Rs.3,000/- as advance to the original plaintiffs. On the same day, it was agreed between the parties that in the event the original plaintiffs repaid the amount of consideration, Bandu * 3 * would re-convey the property to them by executing deed of re- conveyance. Accordingly, an agreement was prepared and signed by Bandu. Later on 12th November, 1963 Bandu paid balance consideration to the original plaintiffs and the transaction of sale was completed by execution of deed of conveyance. It is contended by the original plaintiffs that thereafter on various occasions they requested Bandu to accept the amount of consideration and re-convey the property and hand over possession to the original plaintiffs. They finally sent notice dated 5th July 1974 calling upon the original defendants to specifically perform their part as per the agreement of re- conveyance and hand over possession. 4. The respondents defended the suit contending that the agreement for re-conveyance dated 2nd September, 1963 was not related to the sale-deed dated 12th November, 1963. According to them, once the plaintiffs executed the deed of conveyance of 12th November, 1963 and accepted balance consideration of Rs.7,000/- they are estopped from claiming any remedy on the basis of the document of re-conveyance. They also claimed to have spend more that Rs.5,500/- to improve the suit land. The original plaintiffs being the occupants of the neighbouring lands were well aware of the improvements made by the respondent to the suit land. At the time the improvement was being done, the * 4 * appellants did not object to the same and have thereby waived their right of repurchase of the property. The two other grounds on which the respondents defend the suit was that the agreement of re-conveyance is bad under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act and that the plaintiffs never showed their readiness and willingness to perform their part of the agreement. The parties led their evidence in support of their respective cases. The trial court on appreciation of the evidence before it, rejected all the claims in defence of the respondents except that of readiness and willingness of the plaintiffs in performing their part of agreement of re-conveyance. It held that Bandu had agreed to re-convey the suit land to the original plaintiffs for Rs.10,000/- to execute the sale-deed. The agreement of re- conveyance was related to the sale deed dated 12th November, 1963 and it did not get cancelled on execution of the sale-deed dated 12th November, 1963. It further held that the suit is not barred by estoppel because the respondents made improvements in the suit land and spend Rs.5,500/- thereon. It held that the respondents had failed to prove that the appellants are not entitled to get specific performance of the agreement of re- conveyance in view of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It however * 5 * refused the relief of specific performance holding that the appellants failed to establish that they were ready and willing to perform their part of the contract. The trial court has observed that neither in the plaint nor in the deposition the appellants have averred that they are ready to pay the amount of consideration for re-conveyance of the property. For this reason, the trial court dismissed the suit. 5. Being aggrieved by the judgment and decree of dismissal of the suit, the appellants preferred Regular Civil Appeal No.255 of 1982. The appellate court dismissed the appeal on the ground of readiness and willingness on the part of the appellants but on the ground that re-conveyance deed executed by Bandu did not pertain to sale-deed dated 12th November, 1963. Being aggrieved by that decision, the appellants have preferred the present Second Appeal which was admitted. 6. The admission of the Second Appeal is limited to the interpretation of the three documents. Therefore, consideration of the decision of the appellate court confirming the finding of the trial court as regards the appellants not being ready and willing to perform their part of the contract, stands undisturbed. In the circumstances, whether the appellants succeed in their interpretation of the three documents or not, the final result would be of dismissal of the suit. The * 6 * appellate court has held that the appellants have redeposited an amount of Rs.10,000/- in the court, however there was inordinate delay for the same and that is the ground to refuse specific performance. 7. The agreement of sale, Exhibit-60 was executed on 2nd September, 1963. At the time of its execution, Bandu had paid Rs.2,000/- in cash and Rs.1,000/- was already paid prior to the execution of the agreement. Thus at the time of agreement of sale a sum of Rs.3,000/- was paid and the balance of Rs.7,000/- was to be paid within a period of three years from that day. In case of failure to pay the amount within a period of three years, the appellants were not bound to execute such sale-deed. In that case, the earnest money paid was to be confiscated. The deed of re-conveyance (Exhibit-51) did not specify the period within which the same was to be complied with. The court has held that the agreement of re-conveyance by way of concern if the sellor returns the amount, the purchaser shall re-convey the sale-deed. The appellants had given notice to the respondents to execute re-conveyance on 5th July, 1972. That notice was replied by the respondents on 14th July, 1974 denying execution of re-conveyance deed for several reasons. Thereafter, the appellants kept quite for years together. During the intervening years, there were improvements done on the land. * 7 * 8. The appeal court held that there was not only delay on the part of the appellants in filing the suit for re-conveyance but there was change in the property wherein the respondents have made improvements by spending money for laying down the pipe- line. The improvement of the land is besides on the date of re- conveyance, there was no sale-deed executed. Therefore, the deed of re-conveyance cannot be related to the sale-deed at all. The interpretation put by the lower appellate court on the three documents i.e. agreement of sale at Exhibit 60, sale-deed at Exhibit-49, agreement of re-conveyance at Exhibit 51 is reasonable interpretation and I see no need to disturb the same. In the circumstances, the appeal is dismissed. (Smt.R.P. SondurBaldota,J.) * 8 *