1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 457 OF 1991 Ganesh s/o Irba Kadam, Aged 40 years, Occupation Service, Resident of Kakandi, Taluka and District Nanded. Appellant V E R S U S 1. Ganpati s/o Mahadu Isankar, Aged 61 years, Occupation Agriculture, Resident of New Mondha, Nanded. 2. Gangaram s/o Krishnaji Totawad, Aged 60 years, Occupation Agriculture, Resident of Mangalsangvi, Taluka Kandhar, District Nanded. 3. Manika s/o Krishnaji Totawad (Munnurwar), Aged 50 years, Occupation Agriculture, Resident of as above. Respondents Mr. U.B. Bilolikar, Advocate for the appellant Mr. B.B. Lakhkar, Advocate for respondent No.1 - absent CORAM : A.V. NIRGUDE, J. DATED : 30th June, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and decree passed by the learned III Additional District Judge, Nanded, in Regular Civil Appeal No. 28 of 1986. The learned III Additional District Judge, Nanded allowed the appeal and dismissed the suit of the appellant. The appellant originally filed the suit for specific performance. It was his case, as per the plaint, that the respondent No.2 Gangaram 2 (original defendant No.1) was owner of land Survey Nos. 122 and 123 of village Kakandi, Taluka and District Nanded. He initially agreed to sell entire lands Survey Nos. 122, 123 and 125, ad-measuring about 12 acres to the appellant for price of Rs.17,000/-. The appellant stated that though this agreement took place, he realized that he would not be in a position to raise funds of Rs.17,000/- to purchase entire land ad-measuring 12 acres. So, he suggested to the respondent No.2 that he should sale him only half of the land for Rs. 8,500/-. He said, to this, the respondent No.2 agreed. He said, as per the agreement, he handed over an amount of Rs.7,000/- to the respondent No.2 and took possession of the land. He said that the respondent No.2 agreed to execute proper sale deed on receipt of Rs. 1,500/-. He said, the respondent No.2 also agreed to engage an Advocate for seeking permission for sale from the Assistant Collector, Nanded, because the lands of village Kakandi were affected by certain provisions of the Consolidation Act. The appellant further stated in the plaint that the respondent No.2 wanted to sell the remaining portion of the land to the respondent No.1. He said, in his presence, there occurred an agreement between the respondents No. 1 and 2. He also stated that this agreement took place in presence of one Shri. A.A. Joshi, Advocate of Nanded. He said, the respondent No.2 engaged Shri. Joshi, Advocate for seeking permission for sale from the Assistant Collector. The appellant stated that thereafter he waited for the permission to come, but he learnt that on 29th July, 1975, the respondent No.2 had sold entire land ad-measuring 12 acres to the respondent No.1 keeping him in dark. He confronted this fact to the respondent No.2, but in vain. On the other hand, he said, the respondent No.1 started interfering in the land, which he had agreed to purchase and which was given in his possession. 2. On this cause of action, on 16th June, 1976, the suit was filed for specific performance. As the narration suggests the appellant all 3 along relied upon oral agreements. In the pleadings, there is mention of three oral agreements. The first agreement was in respect of entire 12 acres land agreed to be sold to the appellant for Rs.17,000/-. The second agreement was novation of the first one, in which the respondent No.2 orally agreed to sell half portion, ad-measuring 6 acres, for Rs.8,500/- to the appellant, and, the third agreement is in respect of the remaining portion of the land, which the respondent No. 2 agreed to sell to the respondent No.1 in presence of the appellant as well as Shri. Joshi, Advocate. In the written statement, the respondents took up a stand of total denial. In view of this, various issues were framed and the appellant / plaintiff was asked to record his evidence. Surprisingly, the appellant gave up his original stand of oral agreements. He placed reliance on a writing, which has come on record at Exh.97. According to him, on 30th April, 1974, the respondent No.2 had executed this writing to record the agreement between the parties. The appellant even recorded deposition of the scribe of this document. However, since there is no basis for this document in the pleadings, the Court below, especially the trial Court, should not have allowed the appellant to record his evidence on this line placing reliance on a document which was purported to be an agreement for sale. The appellant recorded deposition of one Maroti, who stated on oath that the respondent No.2 had put the appellant in possession of 6 acres land. The witness stated that this land is adjoining to his own land. The two witnesses of the appellant, Anantrao, the scribe of document (Exh.97) and Govindlal, the witness of the document (Exh.97) are practically useless, because they try to prove the document, which is not part of the pleading of the appellant. So, although these two witnesses stated on oath that the respondent No.2 had agreed to sell the suit land ad-measuring 6 acres to the appellant, the testimonies are not 4 sufficient to prove the appellant’s case. The appellant’s case could have been proved through the deposition of Advocate Joshi, but, unfortunately for the appellant, Shri. Joshi did not state on oath that the respondent No.2 had agreed to sell the suit land to the appellant and the remaining land to the respondent No.1. 4. The appellant could have placed reliance on the record of the office of Assistant Collector to substantiate his case that the respondent No.2 had made an application seeking permission for sale to him. But, even that record has not been brought by the appellant before the Court. Thus, there is practically no documentary evidence in support of the appellant’s case. On the face of it, therefore, the case of the appellant was not believable, and, on this count, his suit deserved to be dismissed. The learned Judge of the first appeal Court discussed the provisions of Section 62 of the Indian Contract Act for dismissing the suit of the appellant. He held that the appellant pleaded novation of the contract, and so, the earlier contract could not be performed. I am of the view that there is really no case of novation of contract. If one reads the plaint minutely, it is found that the appellant stated that the earlier agreement for sale of entire 12 acres land was given up for the new contract, which was in respect of 6 acres land. It was this agreement, the appellant was pressing for specific performance. However, as said above, the appellant cannot succeed in getting the suit decreed, for the reasons mentioned above. Appeal stands dismissed. (A.V. NIRGUDE, J.) srm/sa/457/91