1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 192/2008 (Sudhir Ganpatrao Vinchurkar VERSUS Sadashiv Narayanrao Thengre) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri A.S. Kilor, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 18, 2008. Heard Shri A.S. Kilor, the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for specific performance of contract. According to the plaintiff, the defendant had agreed to sell the suit property to the plaintiff by an agreement dated 26.06.1985. The total consideration was Rs.8,000/- and the plaintiff had paid an earnest amount of Rs.2,000/- to the defendant. The balance amount was payable at the time of the execution of the sale-deed which was to be executed on or before 31.03.1986. It is necessary to note that the plaintiff had instituted yet another suit bearing Regular Civil Suit No.314/1985 for cancellation of a sale-deed executed by the plaintiff in favour of the defendant on 26.06.1985. This suit was instituted a year prior to the institution of the present suit for specific performance of contract. The subject matter of the earlier suit and the present suit was also the same. 2 Both the suits were together tried by the trial Court and a common judgment was passed in both the suits. The other suit i.e. Regular Civil Suit No.314/1985 filed by the plaintiff for cancellation of the sale-deed, was dismissed by the trial Court and an appeal against the same was also dismissed by the first appellate Court. The judgment passed by the trial and the first appellate Court was confirmed in a second appeal filed by the plaintiff. It was held by the Courts that the sale-deed dated 26.03.1985 was not a loan transaction as pleaded by the plaintiff and since it was an out and out sale, the sale-deed dated 26.03.1985 was not liable to be cancelled. The present suit bearing Regular Civil Suit No.250/1986 was decreed by the trial Court and a decree for specific performance of contract was granted in favour of the plaintiff. The appeal filed by the defendant against the judgment and decree passed by the trial Court was, however, allowed and the suit of the plaintiff for grant of a decree for specific performance of contract was dismissed. The plaintiff has challenged the judgment passed by the first appellate Court in the instant appeal. Shri Kilor, the learned counsel for the appellant, submitted that the first appellate Court wrongly appreciated the evidence on record to reverse the findings recorded by the trial Court. The counsel for the appellant submitted that there was ample evidence on record to show that the agreement 3 dated 26.06.1985 was a genuine agreement of sale and did not reflect any loan transaction. The counsel for the appellant then submitted that two of the witnesses examined on behalf of the plaintiff had deposed that the plaintiff had paid an amount of Rs.2,000/- to the defendant as earnest amount and in this background, it was not proper on the part of the first appellate Court to reverse the decree passed by the trial Court. I have perused both the judgments in detail. The first appellate Court reappreciated the evidence tendered by the parties on record to reverse the findings recorded by the trial Court. According to the first appellate Court, the plaintiff was unable to explain as to why the defendant agreed to sell the same property for an amount of Rs.8,000/- in the subsequent year when in the previous year, the defendant has purchased the same from the plaintiff for an amount of Rs.9,000/-. The first appellate Court also considered the fact that the agreement of sale was executed on 26.06.1985 during the pendency of Regular Civil Suit No.314/1985 for cancellation of the sale-deed and the plaintiff had not brought this fact to the notice of the trial Court in Regular Civil Suit No.314/1985 though the subject matter of both the suits was the same. The first appellate Court was also surprised as to why the parties did not enter into a compromise in Regular Civil Suit No.1985 when the agreement of sale was 4 executed on 26.06.1985 during the pendency of the suit. The first appellate Court noted that there were several loopholes in the story put forth by the plaintiff. The oral evidence of the witnesses was reappreciated by the first appellate Court to hold that the agreement of sale dated 26.06.1985 was a nominal document and was not a genuine agreement of sale. The findings recorded by the first appellate Court are based on a proper appreciation of the material evidence on record. Since they are pure findings of fact, they do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE