1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 89 OF 1993 Dhannusingg Kishansingh Yadav & others .. APPELLANTS VERSUS Ramnath Bandu Pere & another .. RESPONDENTS Mr. A.S. Bajaj, Advocate for the appellants. Mr. R.D. Deshpande, Advocate for respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 12 th October, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs instituted suit claiming specific performance of contract of sale of land gat no. 129 Kha and for possession with mesne profit. According to plaintiffs, defendant no. 1, owner of the suit land has executed agreement 2 to sell on 5-10-1973 and agreed to sell the land for consideration of Rs.8,151/-. Earnest amount of Rs.6,000/- was paid by plaintiffs to the defendant. Defendant has accepted balance of consideration amount amounting to Rs.2,151/- from the plaintiffs and has executed Bharna Pavati in their favour. Plaintiffs are willing to perform their part of the contract. However, defendant has shown reluctance. As such, plaintiffs are required to approach the court seeking specific performance of agreement. Defendant has contested the suit by filing written statement. 3 Trial court as well as first appellate court have concurrently recorded finding against plaintiffs. During the continuance of the appeal, defendant no. 1 Ramnath has died. Date of his death is 12-9-2001. However, no steps are taken for bringing on record the legal representatives of deceased respondent no. 1/ original defendant no. 1. As such, the Registrar has passed order on 8-7-2009 in respect of abatement of appeal as against respondent no. 1/ original defendant no. 1. Considering the relief claimed in the suit, instant appeal cannot proceed in the absence of original defendant no. 1. In the absence of original defendant no. 1, relief claimed by the plaintiffs in the suit cannot be granted effectively. In view of death of original defendant no. 1/ respondent no. 1 herein, the appeal abates. 3 Appeal is therefore disposed of as having been abated. 4 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa89.93.odt