1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No. 1034 of 2005 Ananda s/o Bhika Mali Appellant V E R S U S Hansraj s/o Kalu Mahale (died) by LRs. No. 1 to 5 Respondent Mr. H.K. Mundhe, Advocate for the appellant\ Respondents though served absent CORAM : A.V. NIRGUDE, J. DATED : 11th June, 2010 PER COURT : 1. This second appeal is filed against the concurrent findings recorded by the Courts below that the appellant / plaintiff was not entitled to the main relief in the suit of specific performance of an agreement for sale. The Courts below held that the agreement was executed with payment of earnest and also delivery of possession to the appellant / plaintiff. But, the Courts below concurrently held that despite of the agreement, the appellant could not prove his readiness and willingness to perform his part of the contract. While dismissing the suit, the trial Court erroneously directed the appellant / plaintiff to deliver back the possession of the suit land to the respondent / defendant. Admittedly, the respondent / defendant had not filed any counter-claim to recover the possession. The learned Judge of the first appeal Court corrected this error and while rejecting the main plea of the appellant seeking specific performance and while confirming the decree of trial Court to refund the amount, set aside the order directing delivery of possession to the respondent / defendant. The Courts below concurrently held that the appellant had 2 failed to prove the case for specific performance, and, at this stage, in second appeal, it would not be proper for me to disturb such findings. There is, however, one peculiar feature in this case. 2. The appellant / plaintiff had sought not only relief of specific performance, but in the alternative, he had also sought relief for refund of the earnest with interest (this relief is given to the appellant). In addition to these usual alternate reliefs, the appellant sought a third relief in the plaint. He said that since he is in possession from the date of agreement, the Court should direct the respondent / defendant not to disturb his possession perpetually. Another peculiar feature of this case is, though the peculiar relief was sought, it appears, it was not pressed even at the trial stage. No issue was framed in respect of this prayer and no finding was given in respect of this prayer. Even at first appeal stage, this issue was not in controversy between the parties. the Appeal Memo in the first appeal did not mention about this prayer. So, at this belated stage, the appellant cannot resort to an abandoned prayer of perpetual injunction. In any case, the appellant is admittedly in possession, and, as on today, the impugned Judgment and decree does not put his possession in jeopardy without following due process of Law. The appellant has failed to make out a case for admission. No substantial question of Law arises in this appeal. The appeal stands dismissed. (A.V. NIRGUDE, J.) srm/sa/1034/05