1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL NO. 738 OF 2004 Dattatraya Lahanu Auti, age 46 years occ. agriculture and business, R/o. Parner, taluka Parner, dist. Ahmednagar. - - Appellant [ Orig. plaintiff ] versus 1. Madhav Gopala Auti, age 61 years, occ. agriculture, 2. Rangnath Gopala Auti, age 51 years, occu. service, No.1 R/o. Parner, tal. Parner, district Ahmednagar No.2, R/o. Soil Conservation Office, post Majalgaon, taluka Majalgaon, district Beed. - - - - - Respondents Smt. Anjali Bajpai Dube, Advocate for the appellant. Shri N. C. Garud, Advocate for respondent No.1. Respondent no.2 served. CORAM: N. D. DESHPANDE, J. Dated : 25th November 2009 2 PER COURT: 1. Heard Smt. Anjali Bajpai Dube, learned Counsel for the appellant. Shri N. C. Garud, learned Counsel for the respondent no.1 opposing admission. 2. The appellant came up with a case of specific performance of agreement of sale and also for permanent prohibitory injunction in respect of land out of survey No. 1200/1 renumbered as Gat No. 2867 admeasuring 1 H. 29 Ars. rental Rs.1.82 ps. of the eastern side and right to draw water from the well of the said field. The alleged agreement is executed on 9-10-1987 for total consideration of Rs.3000/- and paid Rs.2900/- to the defendant No.1. The sale deed was to be executed within two years. The said land is adjoining to the field of the plaintiff and, therefore, plaintiff was interested to purchase 40 Ars. of land. Admittedly, the said agreement was executed by defendant no.1 and not by defendant no.2 though he is joint owner shown as per the revenue record to the knowledge of the plaintiff. 3. On 14-4-1989, legal notice was issued to the defendant for specific performance with a request to execute the sale deed on 3 payment of the balance of Rs.100/- but defendant declined to said request stating that they never executed such agreement. Trial Court dismissed the suit for specific performance so also the relief of injunction and held that possession of the land was never delivered to the plaintiff by the defendant. In First Appeal preferred by plaintiff also came to be dismissed for specific performance and decree of refund of Rs.2900/- was ordered only against original defendant No.2 was already non suited in both the Courts below. 4. The present appellant who is original plaintiff felt aggrieved and filed second appeal for specific performance which find no merits. Admittedly, defendant No.2 never executed in agreement but plaintiff never pleaded that agreement was executed and signed by defendant on behalf of his brother defendant No.2. There is no pleading of holding out or agency and, therefore, plaintiff appellant did not insist on specific performance in respect of suit land by defendant No.2 and urged for specific performance to the extent of share of defendant No.1 who executed the agreement. 5. It is well established principle that grant of specific performance is a discretionary relief and not only agreement of sale is to be proved by the plaintiff but it must be shown that plaintiff is 4 entitled for specific performance and should make out a case that discretion was not properly exercised by the Courts below. The case on merits has been discussed by both the Courts below. As such, there is no substantial question of law or substantial dispute is involved and the case is limited to only claim valued for Rs.2900/- which is too meagre to entertain the present second appeal. The appeal stands dismissed summarily at the admission stage. ( N. D. DESHPANDE, J. ) pnk/sa73804