1 sa294-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.294 OF 2010 Ahmed Khan Abdullah Khan ..Appellant Vs Ranghunath Krushna Ghate and anr. ..Respondents ­­ Mr.S.G.Deshmukh i/b.Ms.Shubangi Kadam, for appellant. ­­ CORAM : R.G.KETKAR, J. DATE : 25 th FEBRUARY, 2011 P.C: Heard Mr.S.G.Deshmukh, learned counsel for the appellant – original plaintiff. The original plaintiff challenged he judgment and decree dated 17 th December, 2009 passed by the learned District Judge­11 & Addl. Sessions Judge, Pune in Civil Appeal No.13 of 2004 whereby learned District Judge dismissed the Appeal preferred by the plaintiff and partly confirmed the judgment and decree dated 8 th September, 2003 passed by learned Civil Judge Junior Division, Saswad in Regular Civil Suit No.332 of 2000. The Courts below refused to grant the relief of specific performance of agreement of sale. 2] The plaintiff instituted suit for specific performance contending that the respondent no.1 – original defendant no.1 agreed to sell two acres agricultural land out of Gat no.166 to the plaintiff on 23 rd April, 1995 for Rs. 52,000/­. On the day of execution of agreement of sale, defendant no.1 2 sa294-10.sxw received Rs.5,111/­ and subsequently, on 9 th July, 1995 the defendant no.1 received Rs.16,000/­. He called upon the defendant no.1 to execute the sale deed. Since the defendant no.1 did not execute the sale deed, he issued notice under certificate of posting which was not replied by defendant no.1. He, therefore, instituted suit for specific performance of the said agreement. 3] Defendant no.1 resisted the suit by filing written statement interalia contending that he had obtained hand loan in the year 1995 from the plaintiff and he had paid an amount of Rs.1,000/­ towards interest. Since he failed to pay amount of Rs.5,000/­ within the stipulated period, his signature was obtained on a stamp paper towards security. It is his further case that he had paid interest in Diwali, 1996 and thereafter, the plaintiff refused to accept the interest. The defendant denied the execution of agreement of sale as also denied receipt of Rs.16,000/­. Finally, he contended that the plaintiff instituted suit on the basis of bogus documents. 4] The learned trial Judge framed the necessary issues on the basis of the pleadings and the evidence led by both the parties. The learned trial Judge refused the relief of specific performance however, allowed the suit and directed the defendant to pay Rs.16,000/­. Aggrieved by this judgment, the plaintiff preferred Civil Appeal which was dismissed by learned District Judge. Learned District Judge disagreed with the findings of learned trial Judge who has directed the defendant no.1 to pay Rs. 16,000/­. Instead the learned District Judge directed the defendant to pay Rs.5,000/­ by way of repayment of hand loan within a period of three 3 sa294-10.sxw months from the date of order. 5] In support of this Second Appeal, Mr.Deshmukh contended that firstly, the Appellate Court erred in modifying the decree whereby, the defendant no.1 was directed to pay Rs.5,000/­, as against which, the learned trial Judge had directed the defendant no.1 to pay Rs.16,000/­. He submitted that defendant did not file any cross­objection and consequently, the learned District Judge was not justified in modifying that part of the decree. Secondly, he submitted that the learned trial Judge in paragraph no.5 of the judgment held that the agreement of sale is duly proved through the evidence of PW 2 Mohammad Hidayat Ali khan (exhibit 35). Despite this, learned trial Judge did not exhibit the said document. Thirdly, he submitted that in view of Section 91 and 92 of the Indian Evidence Act, it was impermissible for defendant no.1 to lead any evidence contrary to the contents of the said document as he had admitted the execution of document by putting signature thereon. He further submitted that the Courts below committed error in refusing the relief for specific performance on the ground that the transaction in question was a hand loan. 6] With the assistance of learned counsel for the appellant, I have gone through the evidence on record. Plaintiff PW 1 (Exhibit 32) in the cross­ examination admitted that he cannot state the description of the suit property. He was unable to disclose the area of land in question. He was not in a position to state the assessment in respect of the suit land as also boundaries of the suit land. He was also not in a position to state the names of the adjoining land holders. In so far as evidence of PW 2 4 sa294-10.sxw Mohammad Hidayat Ali Khan (exhibit 35) is concerned, in the cross­ examination, he admitted that he cannot disclose the Gat number in respect of which transaction between the plaintiff and defendant no.1 took place as also assessment and boundaries. In paragraph no.10, learned District Judge held that the contents of the agreement of sale are not proved from the oral evidence of PW Nos.1 and 2. I do not find that the learned District committed any error in arriving at that conclusion. Once this position emerges, the question is whether the plaintiff is entitled to relief of specific performance. Both the courts below have concurrently declined to grant relief of specific performance by exercising discretion. I do not find that the Courts below committed any error in declining the relief of specific performance. The concurrent findings of facts recorded by the Courts below are based upon evidence on record. It cannot be said that the judgments of the Courts below are either perverse or that they ignored the relevant material. 7] Mr.Deshmukh submitted that at any rate, learned District Judge was not justified in modifying the decree thereby directing the defendant no.1 to pay Rs.5,000/­ instead of Rs.16,000/­ as directed by learned trial Judge. He submitted that there was no cross­objection preferred by the defendant no.1. I do not agree with the above submission advanced by learned counsel for the appellant. Having regard to the Order 41 Rule 33 of the Code of Civil Procedure, 1908, the appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and such power may be exercised by the Court although the 5 sa294-10.sxw respondent may not have filed any appeal or cross­objection. In view of this position, no substantial question of law arises. Hence, Appeal is dismissed summarily. [R.G.KETKAR, J.]