1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY' CIVIL APPELLATE JRUSIDICTION SECOND APPEAL NO.953 OF 2007. WITH. CIVIL APPLICATION NO.1717 OF 2007 Kashinath Dagadu Thorat : Appellant. versus Shankar Dashrath Thorat : Respondent. Mr.Tushare N. Sonawane for the Appellant. Mr.Dilip Bodake for the Respondent CORAM : R.M.SAVANT,J DATED : JULY 17, 2008 P.C. 1. The above Second Appeal arises out of the Judgment and Decree dated 4th October 2007 passed by the learned Ad-hoc, District Judge-2, Niphad by which the Judgment and Decree dated 3rd March 1998 passed by the Civil Judge, Senior Division, Niphad in Special Civil Suit No.36 of 1995 came to be set aside. 2 2. The Appellant herein is the original Defendant in Special Civil Suit No.36 of 1995 filed by the Respondent herein for specific performance of an Agreement to Sale dated 28th April, 1994. The subject matter of the said suit is the land bearing Gat No.275 admeasuring 44 R and land bearing Gat No.278 admeasuring 56 R out of the total land of the said Gat No.278 of 1 H and 22 R. 3. It was the case of the Plaintiff that by the said Agreement to Sale, the Defendant had agreed to sell the suit lands for Rs.1,50,000/- out of which Rs.50,000/- have been paid by the Plaintiff on 28.4.1994. Pursuant to which the Plaintiff was put in possession of the suit lands in part performance of the agreement. In view of the fact that the Defendant refused to execute the sale deed in respect of the suit lands, the Plaintiff filed the said suit for specific performance. 4. In the said suit, the Appellant herein i.e. the original Defendant had filed his written statement and, the sum and substance of the case of the Appellant was that the description of the property in the plaint was not correct. The Defendant challenged the very 3 genuineness of the said Agreement to Sale. The Defendant denied having received Rs.50,000/- as earnest money from the Plaintiff and also denied to have put the Plaintiff in possession of the suit lands. The trial Court dismissed the suit on the ground that on the basis of the evidence that was adduced on behalf of then Plaintiff it was not possible to accept the case of the Plaintiff, as, according to the trial Court, the witnesses examined by the Plaintiff were interested witnesses. The trial Court on the basis that the Plaintiff was not in a position to state in what denomination of currency notes that the said Rs.50,000/- was paid by the Plaintiff, refused to accept the case of the Plaintiff that the said amount of Rs.50,000/- was paid by the Plaintiff to the Defendant. The trial Court, taking into consideration the fact that the Plaintiff was cultivating onions, held that it was impossible to believe that the plaintiff could pay Rs.50,000/- to the Defendant. The trial Court, therefore, dismissed the said suit. 5. Aggrieved by the said dismissal, the Plaintiff filed an appeal being Regular Civil Appeal No.380 of 2005 before the District Court, Niphad, which came to be allowed and the decree passed by 4 the trial Court was set aside and consequently, the decree of Specific Performance came to be passed in favour of the Plaintiff. The lower Appellate Court on the re-appreciation of the evidence that was on record came to a conclusion that the trial Court erred in disbelieving the evidence of P.W.2 on the ground that he is an interested witness. The lower Appellate Court, on the basis of the evidence came to a conclusion that both the execution of the said Agreement to Sale as well as the payment of Rs.50,000/- was proved. 6. In so far as possession of the lands in question was concerned, the lower Appellate Court, relying on the order passed in Civil Miscellaneous Appeal No.48 of 1995 filed against the order passed under Exhibit 5 in Regular Civil Suit No.91 of 1994 wherein the possession of the suit lands by the present Plaintiff was upheld and whereby the said appeal filed by the Appellant herein came to be dismissed, as also the order passed in the suit filed by the Present Appellant against the present Plaintiff being Regular Civil Suit No.113 of 1994 wherein also the possession of the suit lands by the Plaintiff was upheld, as also on the basis of the order of the Tahsildar, 5 Chandwad dated 24.3.1996 in respect of the entry of crop inspection in the 7 x12 extract i.e. Exhibits 33, 34, 35, and 36, came to a conclusion that the plaintiff was put in possession of the suit lands in part performance of the said Agreement to Sale. As indicated above, the lower Appellate Court on the basis of the evidence that was before it, came to a conclusion that the execution of the said Agreement to Sale, payment of Rs.50,000/- and the possession of the plaintiff was proved by the plaintiff. 7. It is sought to be contended on behalf of the Appellant that the description of the suit properties was vague, ambiguous as was held by the trial Court, and therefore, decree specific performance could not be granted. In my view, the finding of the lower Appellate Court that there was no ambiguity in the description of the suit properties in the teeth of the documents which are on record cannot be faulted with. It would be pertinent to note that the Appellant had adopted various civil proceedings which have been referred to hereinabove in which proceedings the Appellant failed to seek any relief against the Plaintiff. The description of the properties in the said 6 proceedings filed by the Appellant was the same as the description of the properties in instant case. There is, therefore, no substance in the said contention of the appellant. In my view, therefore, the challenge raised in the above Second Appeal is bereft of any merit. The second appeal does not involve any substantial question of law and is accordingly dismissed. 9. In view of the dismissal of the second appeal, all interim orders stand vacated. Time to deposit the amount as directed by the Appellate Court by the plaintiff is extended by a period of eight weeks from date. 10. In view of dismissal of the above Second Appeal, the Civil Application No.1717 of 2007 does not survive and the same is disposed of as such. 11. Operation of this order is stayed for a period of four weeks from date. 7 [R.M.SAVANT, J]