1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 813 OF 2003 Madhukar S/o Jayawant More .... PETITIONER V E R S U S Bhagwan S/o Sambhaji More & Oths. .... RESPONDENTS Mr.V.P.Latange , Advocate for appellant Mr. R.R.Karpe, Advocate for respondent 1 ............................ CORAM : S.V. GANGAPURWALA, J. DATE: 07/09/2010 ORAL ORDER : 1. Heard Mr. Latange, the learned counsel for the appellant and Mr. Karpe, the learned counsel for respondent. 2. The present appellant had filed Suit for specific performance of contract on the basis of the agreement dated 31/10/1988. The Trial Court decreed the Suit. The Appellate Court reversed the finding. The appellate Court came to the conclusion that the transaction was of hand loan. It was also observed by the appellate Court that the property was ancestral 2 property and the other heirs had also share in the said property. The lower appellate court refused to exercise its discretion of granting relief. 3. Mr. Latange, the learned counsel for the appellant submits that the plaintiff has proved the agreement. The attested witnesses have been examined. In such circumstances, there was no reason to disbelieve the case putforth by the appellant. The lower appellate Court has erroneously held that the transaction was not that of agreement of sale but it was of hand loan. 4. Mr. Karpe, the learned counsel for the respondent submits that the finding that the transaction was of hand loan, is a finding of fact which has been arrived at by proper reasonings. According to him, even no purpose would be served if the decree is passed, because there are other heirs. 5. Taking into account the totality of the facts and circumstances, it is clear that the plaintiff himself came with the case that the property is the ancestral property. In such circumstances, when the plaintiff is claiming relief of specific performance, then as per Section 22 of the Specific Relief Act, the plaintiff has to claim additional relief of partition and separate possession which the plaintiff has failed to do so. More over, the relief of specific performance is an equitable and discretionary relief. 6. In such circumstances, no case for interference is made out. The Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does 3 not survives and as such disposed off. [ S.V. GANGAPURWALA, J. ] knp/ SA 813.2003