1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL NO. 187 OF 2006 Bhagwanrao s/o. Bhaurao Wale died - through L.R.s 1A] Sakhubai w/o. Bhagwanrao Wale, - - age 80 years, occ. household, R/o. Aher Dhanora, taluka and district Beed. 1B] Shrirang s/o. Bhagwanrao Wale, age 40 years, occ. agril., R/o.as above. 1C] Sagjanabai w/o. Shivlal Chavan, age 50 years, occ. household, R/o. Kolarwadi, taluka and dist.Beed. 1D] Sunita w/o. Baban Bhgat, age 38 years, occ. household, R/o. Pimpri [Antarwadi], taluka and dist. Beed. 1E] Sangita w/o. Madhukar Chavan, age 35 years, occ. household, R/o. Pargaon, taluka and dist. Beed. - - - - Appellants [ Orig. plaintiff ] versus 1. Lakhpatibai alias Anjanabai w/o. Deorao Wale - died. 2. Devidas s/o. Tukaram Yede, age 69 years, occu. agril., R/o. as above. - - - Respondents 2 Shri S. M. Godsay, Advocate for the appellants. Respondent No.1 died. Shri Girish Thigale, Advocate for Respondent no.2. CORAM: N. D. DESHPANDE, J. Dated : 26th November 2009 PER COURT: 1. Heard Shri S. M. Godsay, learned Counsel for the appellants and Shri Girish Thigale, learned Counsel for the respondent no.2. 2. This is second appeal by the plaintiffs for specific performance of the agreement dated 13-1-1992 for sale of agricultural land for total consideration of Rs.35,000/- and due date of performance as per the agreement was 11-5-1992. Meantime, vendor Deorao on 11-2-1992, sold out the said field to defendant No.2 for a consideration of Rs.36,000/-. Said Devrao died on 27-4-1993. Immediately thereafter in July 1993 plaintiftfs filed a suit for specific performance of the agreement on failure by the present defendant No.1 to execute sale deed as per the agreement dated 13-1-1992. Defendant No.1 who is legal heir of Devrao was bound to execute the sale deed as per the agreement. The plaintiffs 3 further contended that sale deed dated 11-2-1992 was executed to defeat the claim of the plaintiffs and deprived him from purchasing the suit field and the transaction was sham and bogus. Plaintiffs further contended that they were always ready and willing to execute the sale deed and ready with balance consideration of Rs. 25,000/- but the sale deed could not be materialized for the above reasons. 3. Admittedly, both the Courts below dismissed the claim of the plaintiffs for specific performance but granted decree for return of earnest money with interest at the rate of 6 per cent per annum. The said decree was also confirmed in appeal. Hence, this second appeal mainly on the ground that discretion was not properly exercised by both the Courts below despite fact that adverse finding was recorded regarding the said transaction dated 11-2-1992 which is subsequent agreement entered between the defendants inter se, so as to defeat the plaintiff's agreement to execute the sale deed. 4. Shri Thigale, learned Counsel for respondent No.2, vehemently opposed admission of the appeal and urged that concurrent findings are recorded against the appellants. 4 5. It is not the case that plaintiff's claim has been rejected outright and Shri Thigale, learned Counsel for the respondent no.2 who is representing subsequent purchaser defendant no.2 agreed to abide by the decree of the trial Court in the terms. He undertakes that refund of earnest money with 6 per cent interest per annum will be paid within four weeks from today, if not deposited earlier. With this undertaking of the respondent no.2 [ orig defendant no.2 ] and since no substantial question is found, the appeal stands dismissed summarily at the stage of admission. Appeal is accordingly disposed of in the above terms. ( N. D. DESHPANDE, J. )