1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 182 OF 2010 Baban Rangraoji Khandar Vs. Lilabai Mahadeorao Lable Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Order Shri P. S. Patil Adv for appellant. CORAM:_ SMT. VASANTI A. NAIK J . Dated: 14 th JUNE, 2010. . Heard Shri Patil learned counsel for the appellant. The suit was filed by the plaintiff for specific performance of the contract of an agreement of sale. It was pleaded by the plaintiff that the defendant had agreed to sell his property to the plaintiff comprising of more than 5 acres for consideration of Rs. 51,000/-. Plaintiff pleaded that he had paid an amount of Rs. 2000/- to the defendant towards earnest amount and it was agreed that the 2 defendant would execute the sale deed after clearance of all the dues on the agricultural land. It was pleaded that the sale deed was to be executed on or before 05.08.1997. Plaintiff pleaded that the plaintiff was in possession of the suit field since April 1995 in pursuance of the Batai contract. Defendant denied the case of the plaintiff and pleaded that the market value of the suit property was Rs. 4,00,000/- and the defendant could not have agreed to sell it to the plaintiff for an amount of Rs. 51,000/- . The defendant pleaded that her husband was seriously ill in the year 1996 and therefore she had approached the plaintiff for advancement of an amount of Rs. 2000/-. The plaintiff had advanced the said amount of Rs. 2000/- after securing the agreement of sale in his favour. It was pleaded by the defendant that the transaction was money lending transaction and the suit was liable to be dismissed. The trial Court on an appreciation of the evidence on record held that the plaintiff had failed to prove the agreement dated 05.09.1996 and that the defendant had agreed to execute the sale deed on or before 05.08.1997. Trial Court held that the defendant had duly proved that the transaction was a money lending transaction. The trial Court dismissed the suit for specific 3 performance of contract and decreed the suit of the plaintiff for an amount of Rs. 49,000/-. In an appeal filed by the plaintiff the First Appellate Court held that the agreement executed between the parties was not a real transaction for sale. The Court held that the plaintiff did not succeed in proving that he was ready and willing to perform his part of the contract. First Appellate Court however reversed the findings recorded by the trial Court on the plea of the loan transaction to hold that the defendant had failed to prove that the transaction was a money lending transaction. In the facts and circumstances of the case First Appellate Court also dismissed the suit for specific performance of contract and held that the plaintiff was entitled to the refund of the earnest amount. On hearing the learned counsel for the appellant and on perusal of the judgment, it appears that the findings recorded by the First Appellate Court do not call for any interference in the second appeal as they do not give rise to any substantial question of law. The First Appellate Court held that the property was situated just 12 to 15 Kms. from Amravati on Amravati road and the market price of the suit land was much more than the price at which the plaintiff pleaded that the defendant agreed to sell the land to the plaintiff. 4 The First Appellate Court held that it was improbable that the defendant would deliver possession of the suit land by accepting a meager amount of Rs. 2000/-, even assuming that the total consideration payable to the defendant was Rs. 51,000/-. The first appellate Court held that the plaintiff did not take any steps from 2000 to 2006 for regaining the lost possession of the land in the year 2000. The First appellate Court held that the evidence on record shows that the plaintiff had suppressed some material facts as regards the terms of the agreement and there was considerable variance between the pleadings and the evidence of the plaintiff. The First appellate Court held that the agreement of sale was not a sale transaction in the real sense and the plaintiff was not entitled to a decree for specific performance of contract. Since both the Courts have concurrently held that the suit of the plaintiff for specific performance of contract was liable to be dismissed and since the findings recorded by the first appellate Court do not give rise to any substantial question of law. The second appeal is dismissed with no orders as to costs. JUDGE svk 5 6 7 8