1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 113 OF 2011 Shivkumar Jodhalal Jaiswal & Ors. Vs. Chandrakalabai wd/o Keshaorao Bahekar & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri Bapat, Adv for appellant. CORAM: .R. M. SAVANT J. Dated: 1 st MARCH, 2011. The above Second Appeal takes exception to the judgment and decree dated 18.09.2010 passed in Regular Civil Appeal No. 78 of 2003 by which the decree passed by the trial Court dated 27.05.2003 in Regular Civil Suit No. 239 of 2000 came to be set aside and the suit came to be dismissed. The appellants herein are the original plaintiffs who had filed the Regular Civil Suit No. 239 of 2000 for specific performance of the agreement dated 28.06.1994. The respondents herein are the original 2 defendants. It is the case of the plaintiffs that the defendants 1 to 3 had agreed to sell suit property for Rs. 1,71,000/- and on the date of the agreement of sale i.e. 28.06.1994 the defendants accepted the earnest amount of Rs. 20,000/-. Since the defendant no.1 refused to execute the sale deed plaintiff was constrained to file the suit for specific performance. The parties went to trial and lead evidence in support of their respective cases. The trial Court on the basis of the evidence on record decreed the suit and directed the plaintiffs to deposit an amount of Rs. 37,000/- and on such deposit directed the defendants to jointly and severally execute the registered sale deed. Trial Court was of the view that the evidence of the defendants 2 and 3 was required to be accepted and that therefore it would have to be held that the sale deed in question was executed by the defendant no.1 Keshaorao. The trial Court also took into consideration the fact that the sale deeds Ex. 131 and 132 in respect of cancellation of which defendants had filed counter claim was withdrawn by the defendant no.1. Being aggrieved by the decreeing of the suit by the trial Court the defendant no.1 filed Regular Civil Appeal No. 78 of 2003. The Appellate Court on the basis of the material on record held that the plaintiffs had failed to prove the agreement of sale dated 28.06.1994 Ex. 107 in terms of the Evidence Act as plaintiffs had failed to examine the two attesting witnesses or the scribe. The First Appellate Court was of the 3 view that trial Court has erred in recording a finding that the sale deed was in fact executed by Keshaorao when the defendant no.2 who was the witness in question on the said aspect had stated that he had not seen Keshaorao signing the said document. The First Appellate Court also took into consideration the revenue record in the form of 7/12 extract wherein property covered by said agreement of sale was shown to be belonging to 18 members. First Appellate Court on the said basis was of the view that the three defendants could not have sold the property belonging to 18 members and if the plaintiffs sought to rely upon the sale deed then the plaintiffs ought to have filed a suit for specific performance and partition and not exclusively for specific performance. The First Appellate Court was of the view that the trial Court had not taken into consideration the said revenue record or the fact that the agreement of sale in question was not proved in accordance with the Evidence Act. The First Appellate Court therefore reversed the decree passed by the trial Court. In my view the reversal of the decree passed by the First Appellate Court on the grounds mentioned in the impugned judgment of the First Appellate Court cannot be faulted with. Reliance placed by the learned counsel for the appellants on the case reported in AIR 1990 Supreme Court 854 Kartar Singh Vs. Harjiner Singh and Others, in the facts of the present case is misplaced as in the instant case as held by the Appellate Court the plaintiffs had not proved the agreement for sale and that the joint family property owned by 18 members was sought to be sold by only 4 three members. In the light of the findings of fact recorded by the First Appellate Court on the basis of the material on record no substantial question of law arises for consideration in the above Second Appeal which is accordingly dismissed. JUDGE svk 5 6 7