1 S.A.NO.119/1984. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.119 OF 1984. 1. Baburao s/o Gopinath (dead) died during the pendency of the case. 2. Dhondiba s/o Baburao (No.1 Original Plaintiff No.2) ...Appellants. Versus 1. Venkateshrao s/o Shivrampant-died L.R.'s. 1(A) Smt.Mathurabai Venkateshwar Choudhari, Age: about 72 years, Occ: Household, R/o Choudhari Galli, Mudkhed (S.C.Rly.), Tq.& Dist.Nanded. 1(B) Sham @ Shivram Venkateshrao Choudhari, Age:50 years, Occ: Service as police Prosecutor, at Ambajogai, Dist.Beed. 1(C) Mukund Venkateshrao Choudhari, Age: 46 years, Occ: Adv.Choudhari Galli, Mudkhed (S.C.Rly.), Tq. & Dist.Nanded. 1(D) Govindrao s/o Venkateshrao Choudhari, Age: 34 years, Occ: Service as Teacher, Mahatma Gandhi Vidyalaya Mudkhed, Tq.& Dist.Nanded. 1(E) Gopalrao Venkateshrao Choudhari. Age: 30 years, Occ.Agri., R/o: Choudhari Galli, 2 S.A.NO.119/1984. Mudkhed, Tq. & Dist.Nanded. 1(F) Krishna Venkateshrao Choudhari, Age: 28, Occ: Agri., R/o: as above. 1(G) Narayan Venkateshrao Choudhari, Age: 26 years, Oc: & R/o: as above. 1(H) Sou.Sunita Subhashrao Patil, Age:52 years, Occ: Household, R/o:Vasantnagar, Nanded. 1(I) Sou.Vaishali Vidyadharrao Nandedkar, Age: 30 years, Occ: Household, R/o: Pundlik Wadi, Near Mahaveer Stambh Nanded. 2. Maroti s/o Baburao (Original Defendants No.1 and 2 respectively) 2-A. Prayagbai w/o Maroti Suryawanshi. 2-B. Govind S/o Maroti Suryawanshi. 2-C. Narayan Maroti Suryawanshi. 2-D. Sunil Maroti Suryawanshi. 2-E. Kailash Maroti Suryawanshi. 2-F. Shashikala W/o Digambarrao 2-G. Chandrakalabai W/o Bapurao. 2-H. Shalinitai W/o Uttamrao. All r/o Mudkhed, Railway Station Road, Tq.Mudkhed, Dist.Nanded. ...Respondents. ... Mr.A.G.Dalal, Advocate h/f V.D.Salunke, Advocate for the appellants. Mr.P.G.Godhamgaonkar, Advocate for respondent No.1. Mr.P.V.Mandlik, Senior Advocate for respondent Nos. 1B, 1G, 1H, 1I. Respondents No.1A,C to F served. Mr.V.D.Patnoorkar, Advocate for Respondent Nos.1(A, D.E.F.). Mr.J.S.Gavane, Advocate for respondent No.2. ... 3 S.A.NO.119/1984. CORAM: A.V.NIRGUDE,J. Date : 8th July, 2009. ORAL JUDGMENT: 1. On 17th July, 1984 when my learned predecessor admitted this appeal, the substantial questions of law were not formulated. Since, the appeal was admitted the R. & P. was called for, with the help of the learned Advocates appearing for the parties, I went through the record of the lower Court including the Judgments impugned. 2. The first question that I asked myself, is whether in this appeal there exists any substantial questions of law. After perusal of the judgments and record of the lower Court and after hearing the submissions of the appellants, my answer to this question is in negative. I would still elaborate on this aspect of the matter further. 3. The appellants who were father and son are the plaintiffs in the trial Court. They sued the respondents/defendants for specific performance of contract for sale dated 2nd March, 1953 made by the defendant No.1 agreeing to sell the suit land survey No.192 of village Mudkhed etc. The respondent No.1 4 S.A.NO.119/1984. was the owner of the land. The appellants/plaintiff said he agreed to sell it to the appellant No.1 for a consideration of Rs.6900/- vide an agreement for sale dated 2nd of March, 1953 accepting Rs.3000 as earnest and delivered the possession to the defendant No.2, the other son of the appellant No.1 in part performance of the contract. They said, from time to time, they paid the remaining consideration to the respondent No.1. They said that the appellants and the respondent No.2 were members of Hindu Joint Family and the respondent No.2 being the elder son of the plaintiff No.1, the land was shown in his possession in the Revenue Record. They said the respondent No.1 agreed to obtain necessary permission for sale under the provisions of Hyderabad Tenancy and Agricultural Lands Act, from the Revenue Authorities. The respondent No.1 initiated such proceedings in the year 1961 seeking permission to sell the suit land to the respondent No.2, but he withdrew the application abruptly behind the back of the respondent No.2 as well as the plaintiffs. In the mean time, in 1973, the respondent No.2 got separated from the joint family & started living separately. It is the case of the appellants that the respondents No.1 and 2 then colluded and with the result, the respondent No.2 allowed the respondent No.1 to take back possession of the suit land through 5 S.A.NO.119/1984. a sham litigation. The appellants demanded specific performance of the agreement. But they said, the respondent No.1 flatly refused to do so and so in 1975 they filed this suit. 4. As against this, the respondent No.1 contended that he never agreed to sell the suit land to the plaintiff No.1. He said, since prior to 1960 the respondent No.2 was cultivating the suit land as his tenant. He said, in 1960, he agreed to sell the suit land to him & pursuant to this agreement, he sought permission for such transfer from the revenue authorities under the provisions of Hyderabad Tenancy and Agricultural Lands Act. But, the proceedings were withdrawn and the agreement did not materialise. 5. The respondent No.2 though was party, since beginning to the proceedings, did not file any written statement. 6. The trial Court framed the issues and recorded it's findings. The most important question of fact between the parties was, "whether the respondent No. 1 agreed to sell the suit land to the appellant No. 1 ?" On this question, the trial Court held against the appellants. Even the Lower Appellate Court held similarly. Both the Courts below held that the suit 6 S.A.NO.119/1984. was barred by limitation. 7. The learned Advocate appearing for the appellants tried to convince me that there are at least two substantial questions of Law. He said, that the Courts below did not appreciate the evidence on record and erred in holding that the suit was barred by limitation. He further said that both the Courts below erred in holding that the suit agreement of 1953 was not proved. At his instance, I went through the oral as well as documentary evidence and found that the Courts below appreciated the facts of the case quite properly and recorded findings of fact that the appellants could not prove the suit agreement of 1953. Besides the appellants' advocate in effect is seeking appreciation of the facts once again. If the questions of fact have gone against the appellants in both the Lower Courts, there is hardly any possibility of a substantial questions of Law being raised at this stage. 8. Since there are no substantial questions of Law involved in this appeal, the appeal stands dismissed. Rule is discharged. (A.V.NIRGUDE,J.) lkp.