1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. SECOND APPEAL NO.209 OF 2008. Sau.Vimal Suresh Girpunje and one anr. ..vs.. Suresh Trimbakrao Deshmukh -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C.L.PANGARKAR,J. Dated : 4th December, 2008. 1. Heard Mr.V.M.Deshpande, Advocate for the appellants and Shri A.S.Chandurkar, Advocate for respondent. 2. This second appeal has been preferred by the original defendants. Respondent Suresh Deshmukh had instituted a suit for specific performance of contract of sale of the suit field. It was his contention that the price was settled at Rs.45000/- and he has paid sum of Rs.40,000/- towards earnest and balance was agreed to be paid at the time of the execution of the sale-deed. The said agreement was executed on 31/12/1993. 2 Since the defendant did not execute the sale-deed, the plaintiff issued a notice and instituted a suit for specific performance of the contract. 3. The defendants appeared before the trial court and filed a joint written statement contending therein that there was no agreement of sale in fact between the parties. The transaction in question was merely a loan transaction. The suit field was never agreed to be sold. It was also contended that defendant no.2 i.e. wife of defendant/respondent no.2 is the owner of the suit field. 4. The trial court found as fact that the defendants have failed to prove that it was a loan transaction and there was in fact an agreement of sale between the parties. Holding so, the learned Civil Judge decreed the suit for specific performance of the contract. The suit was, however, decreed as against defendant no.1 alone i.e. husband, who had executed the agreement of sale. 3 5. Defendant no.2 – wife preferred an appeal before the District Judge. The District Judge concurred with the findings of the trial court and dismissed the appeal He, on facts also found that defendant no.1 against whom a decree was passed, has not preferred an appeal and he also considered the question as to whether defendant no.2 was the owner of field although no specific point to that effect was raised in the judgment. All the same, he found that no issue with regard to ownership was raised even by the trial court but there is an evidence available on record to hold that defendant no.1 was the real owner and not defendant no.2. Holding so, the learned judge dismissed the appeal. 6. Shri V.M.Deshpande, learned counsel for the appellant, contends before me that there are many circumstances suggesting that the transaction in suit is one of loan and not of agreement of sale. Before dealing with this question, it would, however, be necessary to deal with the contention raised by Mr.Chandurkar, learned counsel for the 4 respondents. Shri Chandurkar submits that this second appeal is not at all maintenable at the instance of defendant no.1 and even defendant no.2. He submits that there are two reason for this. First, defendant no.1 against whom a decree for specific performance of contract was passed, did not prefer any appeal before the District Judge. He submits that, therefore, defendant no.1 accepted the findings against him and was satisfied with the decree that was passed against him. In fact, according to Shri Chandurkar, defendant no.2 had no reason to prefer an appeal as there was no decree as such against defendant no.2. It is apparent that defendant no.1 did not prefer any appeal against the decree passed against him. I find much substance in the contention of Mr.Chandurkar. Since defendant no.1 did not prefer any appeal against the decree passed against him, he allowed the decree to be confirmed against him and it must be so treated. In the circumstances, defendant no.1 has no right to prefer an appeal before this court and agitate the point which he could have very well agitated before 5 the first appellate court. In the circumstances, I need not consider the question raised by Shri V.M.Deshpande Advocate. 7. It was contended that the court must appreciate the fact that out of Rs.45000/-, Rs.40,000/- were paid and yet no possession was delivered to the purchaser. He submits that for six years, no suit was in fact filed and this would clearly suggest that the agreement was not a genuine agreement of sale but was a merely a security. The submission has no force. The courts below have considered the evidence and have on fact found that it was a real agreement of sale. That would be the pure question of fact and no question of law is involved as raised by learned counsel for the appellants. More over, learned Judge of the first appellate court has also considered the admissions given by defendant no.1 himself in the cross-examination showing that he was the exclusive owner of the property and the property was ancestral one. Obviously, he admits that his wife – defendant no.2 is not the owner of 6 the suit property. This is also found as a fact and I do not find any reason that findings are in any way perverse. In the circumstances, is urged before me are the purely questions of facts. No substantial questions of law is involved in the appeal. In the circumstances, the appeal is dismissed in limine. JUDGE. chute