1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.31/2010 ( Pukhraj Vyas ..V/s.. Natthu Bambarde through L.R. ) ------------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------ Mr. N.R. Saboo, counsel for the appellant. Mr. Loney, counsel for the respondent. Coram : F.M.REIS, J. Dated : 26th February 2010. Heard the learned counsel for the appellant and the respondent. 1. This is an appeal preferred by the appellant challenging the judgment and decree passed by the Principal District Judge, Amravati in Regular Civil Appeal No.68/2005 dated 28th August 2009 whereby the appeal preferred by the appellant challenging the judgment and decree passed by the Civil Judge (Junior Division), Amravati dated 27/4/2005 in R.C.S. No.558/2001 came to be dismissed. 2. It is the case of the appellant that on 12/2/1992 Natthuji Bambarde who is now deceased had agreed to sell an agricultural land 2 admeasuring 43 R out of Survey No.13/1-A of Mouje Akoli at the rate of Rs.70,000/- per acre. The respondents are the legal heirs of said Natthuji. It is further their contention that the sale deed was executed on 6/11/1992 by the deceased Natthu which was duly registered and land admeasuring 22 R was conveyed in favour of the appellant after receiving consideration of Rs.35,000/-. It is further their case that the said Natthu had promised the appellant that he would execute the sale deed for the remaining portion of 21 R land after clearing the charge of Ramnavmi on the suit land. Said natthu on 21/11/1995 had accepted a sum of Rs.10,000/- and acknowledged the same. It is further their contention that they were ready and willing to perform their part of contract. On 21/1/2002 the appellants realized that the respondent was avoiding the execution of the sale deed, and a suit was filed for specific performance of the said agreement. 3. The said Natthu had filed the written statement by contesting the said suit filed by the appellant. He denied the execution of the agreement for sale dated 12/2/1992 and acceptance of the earnest money of Rs.6,000/- on the said date. He admitted that on 6/11/1992 he had executed a sale deed in respect of 22 R 3 land for a sum of Rs.35,000/- in favour of the appellant. However, he denied any assurance with regard to the execution of the agreement regarding the remaining portion of the land admeasuring 21 R in favour of the appellant. He specifically denied the receipt of a sum of Rs.10,000/- as claimed by the appellant. After filing of the written statement said Natthu expired and the present respondent was brought on record as his legal representative. 4. After framing the issues and recording the evidence, the learned 5th Joint Civil Judge (Junior Division), Amravati in R.C.S. No.558/2001 dismissed the suit filed by the appellant. The learned Judge rejected the claim of the appellant about the payment of Rs.10,000/-. The learned Judge further held that the claim of the appellant that at the time of the execution of the sale deed on 6/11/1992, an assurance was given that the remaining portion of the land admeasuring 21 R will be sold to the appellant could not be accepted. The learned Judge found that there was no agreement established by the appellant to the effect that the respondent had agreed to sell the suit land admeasuring 21 R in favour of the appellant. The learned Judge came to the conclusion that the suit was barred by limitation. Further the 4 learned Judge came to the conclusion that the appellant have failed to establish the existence of the agreement to sell the said portion of land and the appellants have also failed to prove that they were ready and willing to perform their part of agreement. 5. The appellants preferred an appeal before the learned District Judge being Regular Civil Appeal No.68/2005 and by judgment dated 28th of August 2009 the appeal came to be dismissed. The learned District Judge confirmed the findings of the leaned trial Judge and came to the conclusion that the appellants had failed to establish the payment of Rs.10,000/- on 21/11/1995 to the said Natthu. The leaned District Judge further came to the conclusion that the appellant was not entitled for specific performance of the agreement as the appellant had miserably failed to establish the alleged assurance given by the said Natthu in the year 1992 that he would sell the remaining portion of the land at a later date. The learned Judge found that there was no reference in the sale deed about the claim of such assurance having been given by the said Natthu. The leaned Judge found that the appellant has failed to adduce any evidence to consider the contention about the existence of the alleged agreement 5 after the sale deed was executed to the effect that the said Natthu would sell the remaining portion of 21 R land to the appellants. The learned Judge further found that the claim of the appellant that sum of Rs.10,000/- which was stated to have been received by said Natthu was disbelieved after examining the said documents and found that the signature of said Natthu was not found on the said acknowledgment. The learned Judge further held that there were two signatures of two persons who were not even examined by the appellant to establish his contention. The learned Judge disbelieved the existence of the agreement as claimed by the appellant. The learned Judge further found that from the date of the execution of the sale deed on 6/11/1992 til the filing of the suit in the year 2001, there was no material adduced by the appellants to the effect that the appellants were ready and wiling to perform their part of agreement. Consequently, the said appeal came to be dismissed. 6. The learned counsel appearing for the appellant assailed the judgments passed by the Courts below and contended that the Courts below have miserably failed to appreciate the evidence on record. The learned counsel 6 further submitted that there was ample evidence on record to come to the conclusion that a sum of Rs.10,000/- was paid by the appellant to the said Natthu and as such the findings of the Courts below has no basis. The learned counsel further submitted that the suit was filed for specific performance of original agreement at Exh.40 dated 12/2/1992. The learned counsel further contended that the findings recorded by the Courts below that the appellant was not ready and willing to perform his part of agreement are perverse and as such calls for interference by this Court in the second appeal. The learned counsel further submitted that the Courts below have erroneously come to the conclusion that the suit is barred by limitation. 7. On the other hand, the learned counsel appealing for the respondent has supported the judgment of the Courts below. He has submitted that the Courts below have come to the conclusion on the basis of evidence on record and found that there was no assurance given by the said Natthu to sell the area of 21 R in favour of the appellant. The learned counsel further submitted that the concurrent findings of fact to the effect that the appellant has failed to establish about the existence of the agreement 7 to convey the area of 21 R land in their favour cannot be interfered with by this Court in the second appeal. The learned counsel further submitted that the question as to whether the appellant was ready and willing to perform his part of agreement have been concurrently decided against the appellant. These concurrent findings cannot be interfered with by this Court in a second appeal. The learned counsel further submitted that the Courts below have rightly come to the conclusion that the suit is barred by limitation. 8. Having heard the learned counsel for the parties and on perusal of the record, I find that there is no substantial question of law which arises in this appeal, which calls for interference by this Court. Both the Courts below have concurrently held that the appellant has failed to establish about the existence of the assurance given by the said Natthu to convey the land admeasuring 21 R. In fact, the conduct of the appellant after the execution of the sale deed on 6/11/2009 itself shows that no such assurance was given by the said Natthu in favour of the appellant. In fact, the appellant is not entitled to claim that the remaining portion of land was agreed to be sold at a later date by the said Natthu in favour of the appellant. The 8 sale deed does not disclose that the said Natthu had agreed to convey the remaining portion of land at a later date. In fact the contention of the respondent that the appellant was satisfied with the execution of the sale deed to the extent of 22 R has to be accepted considering the conduct that after the execution of the sale deed there is no correspondence by the appellant calling upon the respondent to execute the sale deed with regard to the remaining portion of land. There is no evidence on record produced by the appellant to show that from the date of the execution of sale deed in the year 1992 til the filing of the suit there was any correspondence between the appellant and said Natthu and/or the respondent to the effect that any assurance was given about conveying the disputed land in favour of the appellant. This conduct on the part of the appellant itself creates a doubt about that claim of the appellant that the said Natthu had agreed to convey an area of 21 R in favour of the appellant. 9. The Apex Court in 1999 (7) S.C.C. 303 (Ram Kumar Agrawal and another V/s. Thawar Das (dead) through L.Rs.) has held that the question as to whether the parties are ready and willing to perform their part of contract is 9 essentially a question of fact which cannot be interfered with in a second appeal. The Apex Court has held that the High Court in a second appeal cannot re-appreciate the evidence to ascertain whether there is readiness and willingness on the part of the parties to the agreement. 10. Both the Courts below have concurrently held on the basis of the material on record that the appellants were never ready and willing to perform their part of contract. Apart from this there is a finding of fact that the appellant has failed to establish the existence of the agreement after the execution of the sale deed deed with regard to the remaining land of 21 R. No agreement had been established by the appellant to that effect. This concurrent findings of fact cannot be interfered with by this Court in a second appeal under section 100 of the Civil Procedure Code as the said findings are after appreciating the evidence on record. The learned counsel for the appellant has failed to point out any perversity in the said findings. The Courts below have appreciated the evidence in a proper perspective after examining the evidence on record and have came to the conclusion that the alleged agreement has not been established nor 10 evidence was adduced to show readiness and willingness to perform her part of the agreement. There is no substance in the present appeal and as such the appeal stands summarily dismissed. Judge. Tambaskar.