1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1164 OF 2004 Sayyed Sayyedduddin Pervaiz, S/o Habibuddin, Age : 44 Years, Occu. : Business, R/o Quarter No. (46), M.H. No. 01/05/95, H. I. G. Colony, Near I. T. I. Nanded .. .. APPELLANT (Orig. Plaintiff) Versus Smt. Khuteja Nafees W/o Habibuddin Died through her legal representatives 1A. Mrs. Maryam Shahnaz Hussaini, Age : 65 Years, Occu. : Beautician, R/o Chandani Beauti Centre Situated at M. No. 01/10/1120, Second Floor, B-Block Vishnu Complex, Opposite Hotel Taj Patil, V.I.P. Road, Nanded. 1B. Dr. Sayed Ishaquddin S/o Habibuddin, Age : 50 Years, Occu. : Dentist, R/o Dental Clinic, Ground Floor, Building - C Halima Apartment, Mohd. Shahid Road, Behind Maratha Mandir Theater, Mumbai Central, Mumbai .. .. RESPONDENTS (Orig. Defendant) 2 Shri S. S. Pervaiz, Party-in-person. The Respondent No. 1A served - absent. Smt. M. R. Jamdhade, Advocate for the Respondent No. 1B. Shri V. R. Naik, Advocate for the Respondent No. 1B. CORAM : N. D. DESHPANDE, J. DATE : 13TH NOVEMBER, 2009. PER COURT : 1. Heard Shri S. S. Pervaiz the present appellant who is original plaintiff, who had filed suit against his mother for specific performance of agreement of sale in respect of suit property described as bearing municipal numbers 3-2-151/2, 3-2-151/3 and part of 3-2-150(Now new No. 3-2-182, 3-2-183 and part of 177) situated at Railway Station Road, Nanded. 2. According to the appellant, the defendant/mother sold the said property to him for the consideration of Rs. 10,000/- and accepted entire consideration on 01.05.1989 and an agreement of sale came to be executed on 06.05.1989. The agreement was notarized before the Notary Public. The said agreement to sale is styled as "Saude Chithi" coupled with delivery of possession and all rights in the property. However, it is not registered before the Sub Registrar, therefore, it appears that, after their relations became strained she refused to execute the registered sale deed in favour of the appellant/plaintiff. 3 3. The appellant's suit was decreed by the judgment and decree dated 21.02.2001 by the IVth Joint Civil Judge Junior Division, Nanded for specific performance and also for injunction as prayed with a direction to the defendant to execute the registered sale deed in the office of Sub Registrars Office, Nanded in respect of the suit property. Feeling aggrieved by the said judgment and decree, the defendant mother during her life time preferred an appeal in the Court of District Judge Nanded. Said appeal was allowed by the judgment and decree dated 12.01.2004 in Regular Civil Appeal No. 167 of 2001 by the learned Additional District Judge, Nanded. Consequently, the judgment and decree passed by the IVth Joint Civil Judge Junior Division, Nanded in Regular Civil Suit No. 740 of 1998 was set aside and the suit was remanded to Trial Court for fresh hearing directing the Trial Court to frame additional issues with liberty to the parties to lead the evidence on those issues. The order of the First Appellate Court is reproduced as below : O R D E R 1- The appeal is allowed with cost. 2- The judgment and decree passed by learned 4th Jt. Civil Judge J.D. Nanded in R.C.S. No. 740/1998 is set aside. 3- The Suit is remanded to the Trial Court for fresh hearing. 4- The Trial Judge shall frame the issues in view of the discussion and allow the parties to lead evidence on those issues. 5- The evidence recorded during the original trial shall, subject to all just exceptions, be evidence during the 4 trial after remand. 6- The parties to appear in the trial Court on 7-2-2004. 7- R. & P be set to lower Court immediately. 4. It is the impugned judgment and order in the second appeal by the plaintiff/appellant. I heard Shri S. S. Pervaiz, who is appellant/original plaintiff who himself is an advocate and practicing lawyer. I have also gone through the pleadings of the parties and the impugned judgment and decree passed by the First Appellate Court. The Appellate Court has taken overall view of the matter before the Trial Court and came to the right conclusion that, the important issues have not been framed with regard to plaintiffs suit for specific performance, on the basis of alleged agreement of sale styled as "Saude Chithi" which he has enforced for getting a regular sale deed. More over, mother/defendant has alleged fraud and denied the execution of the "Saude Chithi" and disowned the document. There are no issues on this point, and therefore, the First Appellate Court was justified in remanding the suit while appreciating the facts and evidence of the case. The First Appellate Court is a final Court of finding facts. The lower Appellate Court has understood the seriousness of the matter, when such dispute is between close relations like son and mother and complexion of relations change with the passage of the time and also been pointed out by the plaintiff that, his mother got annoyed because the plaintiff married with Lata who is belonging to different religion Hindu. However, it is a matter to be considered and to understand the real controversy between the parties with reference to the suit property, as such, the order of remand is fully justified and call for no interference. 5 Consequently, the Trial Courts judgment and decree was set aside. Now parties are required to appear before the Trial Court and not before the High Court in second appeal. 5. Thus, there is no substantial question or point of law and this appeal stands dismissed summarily with a direction to both the parties to appear before the Trial Court on 18th December, 2009. The Trial Court shall proceed with the matter in the light of the observations and directions given by the First Appellate Court in judgment and decree dated 12.01.2004. The Trial Court shall frame necessary additional issues referring to the pleadings of both the parties with liberty to both the parties to lead evidence 6. The matter is old one and, therefore, hearing of the suit be expedited and it may be disposed of within six months. Both the parties assured their co-operation for the Trial. In the above terms the second appeal stands disposed of at admission stage. The record and proceeding of lower Court be transmitted to the lower Court immediately. [ N. D. DESHPANDE, J.] bsb/Nov. 09