: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.41 OF 2009 Suryakant S. Sanas .. Appellant V/s. Laxman G. Sanas & Anr. .. Respondents ..... Mr. Bhushan A. Walimbe i/by Smt. Preeti B. Walimbe for the appellant Mr. G.S. Godbole i/by Smt. Jai V. Kanade for the respondents ..... CORAM : R.Y. GANOO, J. DATE : 19TH JUNE, 2009. P.C. : 1. Mr. Suryakant Sanas the appellant herein instituted Regular Civil Suit No.79 of 2006 in the Court of Civil Judge, Junior Division, Koregaon for enforcement of agreement dated 6th January, 1992 which agreement is at Exh.65. According to the appellant the possession in respect of 40R which was agreed to be sold vide Exh.65 was handed over to the appellant : 2 : on the same day and that is how the appellant continued to be in possession of the said 40R (hereinafter referred to as the said property). The appellant had paid full consideration of Rs.30,000/- and the appellant expected the conveyance in his favour. As the respondents failed to comply with that expectation, the appellant instituted the suit. Learned trial Judge heard the suit and by judgment dated 29th March, 2008 decreed the suit in favour of the appellant and granted specific performance. Being aggrieved by the said judgment and decree the respondent herein instituted the Regular Civil Appeal No.130 of 2008 in the Court of District Judge, Satara (hereinafter referred to as the learned District Judge). The learned District Judge allowed the appeal and set aside the judgment and decree dated 28th March, 2008 and refused the claim of the appellant as regards specific performance. The said judgment and decree dated 27th November, 2008. Being aggrieved by the said judgment an decree, the appellant herein has preferred the Second Appeal. 2. With the assistance of learned advocates on both the sides, I have perused the document at Exh.65 being : 3 : Agreement to Sale and possession receipt dated 6th January, 1992 at Exh.66. The learned trial Judge accepted the evidence led by the appellant and came to the conclusion that the possession of the suit land was handed over to the appellant and appellant had paid full consideration and what remained to be done was execution of the document. The learned trial Judge accepted the evidence led by the appellant as regards the actual area in regard to which appellant was put in possession and the related aspects with reference to execution of the Sale Deed. 3. The learned District Judge considered the matter from a different angle in as much as the learned District Judge came to the conclusion that the document at Exh.65 being Agreement to Sale did not specify the exact portion out of the land bearing Gat No.24/2A was agreed to be sold. Agreement to Sale clearly indicates that at the time of execution of the Agreement to Sale, the respondent was in joint possession with other persons. Learned District Judge came to the conclusion that reading document at Exh. 65, the precise description of the land agreed to be sold was not clear and, therefore, the relief of the : 4 : specific performance could not have been granted as the parties would be incapable of executing a proper Sale Deed in regard to defined portion of the main land in question. 4. The respondents before this Court have contended that the possession in respect of the suit property was not handed over to the appellant at the time of execution of the Agreement to Sale. In my view, for the purposes of deciding the main point with reference to document at Exh.65, one may proceed on the footing that the possession of the suit property was handed over to the appellant. In my view, the main question is whether the Court can grant specific performance based on document at Exh.65. 5. Learned advocate Mr. Walimbe submitted that all the witnesses examined by the appellant clearly gave a picture as to which land was agreed to be sold and therefore the learned trial Judge rightly accepted the said evidence and granted specific performance. According to him learned District Judge erred in neglecting the oral evidence and solely relied upon a document at Exh.65. The learned advocate Mr. Walimbe : 5 : contended that the approach of the learned District Judge was wrong, when there was sufficient material to come to the conclusion as to which portion of the land was required to be sold. 6. Learned advocate Mr.Walimbe submitted that after the execution of said document, subsequently there was an oral agreement such oral agreement should be taken into consideration by the learned District Jugde while passing final order. This will mean that according to the appellant in so far as this case is concerned, the document at Exh.65 i.e. Agreement to Sale was executed and soon thereafter oral agreement was arrived at so as to convey as to which portion of property is agreed to be sold. Learned advocate Mr. Walimbe submitted that soon after the job of registration of Agreement to Sale was over, parties left the office of the Sub- Registrar and thereafter it was orally agreed that a particular portion of the main land is agreed to be sold. If this is be so, then such an averment ought to have been found in the plaint. 7. According to learned advocate Mr. Walimbe provisions of Section 91 of Indian Evidence Act would : 6 : not be applicable to the facts of this case and provisions of Section 91 proviso 2 of Indian Evidence Act would be applicable as according to learned advocate Mr. Walimbe the witnesses had given evidence as regards the description of the property agreed to be sold. This submission cannot be accepted as the appellant has not been able to show from the plaint that after execution of agreement at Exh.65, an oral agreement was arrived at to fix the description of the property which was agreed to be sold. In the absence of appropriate pleading, oral evidence in that behalf cannot be accepted. 8. In view, of the aforesaid discussion, it is clear that there was no acceptable material on the basis of which the Court could have arrived at a conclusion as to which property was agreed to be sold and conveyed. The text of Exh.65 Agreement to Sale was inadequate and that is how learned District Judge rightly held against the appellant. 9. For the aforesaid discussion, the argument advanced across the bar on behalf of the appellant cannot be accepted. No other question was pressed by : 7 : learned advocate Mr. Walimbe and no substantial question of law is involved in this appeal and such Second Appeal is required to be dismissed. Hence, the order. ORDER . Second Appeal is dismissed. In the facts of the circumstances there shall be no order as to costs. . In view of this, Civil Application No.176 of 2009 is dismissed with no order as to costs. (R.Y. Ganoo, J.)