1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 68/2010 (Deonath Purnaji Tembhare VERSUS 1.Jaikisan Sitaramji Jaiswal, 2) Madhukar Ramkrushna Patharkar, 3) Prabhakar Ramkrishna Patharkar, 4) Smt. Chhayabai Prabhakar Patharkar) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.Y. Deopujari, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 26, 2010. Heard the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for specific performance of contract of sale of agricultural land. It was pleaded by the plaintiff that the defendant no.1 had, by an agreement dated 23.09.1989, agreed to sell the suit field to the plaintiff for a consideration of Rs.70,000/-. It was pleaded that an amount of Rs.13,000/- was paid as an earnest amount. The sale-deed was to be executed on or before 15.04.1990. The plaintiff pleaded that he was ready and willing to perform his part of the contract but, the defendant no.1 failed to perform his and in stead sold the suit field to the defendant nos.3 and 4 in 1991. The defendant no.1 denied the claim of the plaintiff and further denied that he had executed an agreement of sale on 23.09.1989. It was the case of the 2 defendant no.1 that the document dated 23.09.1989 was a nominal document, which the plaintiff had got executed from the defendant as the defendant had sought a hand loan of Rs.7,000/- from the plaintiff. The defendants sought for the dismissal of the suit. The trial as well as the appellate Court held that the plaintiff had failed to prove that the plaintiff was ready and willing to perform his part of the contract. Both the Courts did not believe the oral evidence of the plaintiff to that effect. The Courts held that the first notice was issued by the plaintiff to the defendant no.1 after the property was sold to the defendant no.1 to defendant nos.3 and 4 in the year 1991. According to both the Courts, the plaintiff, who was an advocate, had failed to prove his readiness and willingness to perform his part of the contract. The Courts held that the defendants also did not succeed in proving that the defendant no.1 had sought a hand loan of Rs.7,000/- from the plaintiff. The Courts also recorded a finding that the discretionary relief of specific performance could not have been granted in favour of the plaintiff as the defendant no.4 had developed the suit property to a great extent and had planted orange orchards in the suit fields. 3 The findings recorded by both the Courts are pure findings of facts. Even though the case of the defendant about the nature of the agreement of sale dated 23.09.1989 was negatived by both the Courts, since both the Courts had concurrently held that the plaintiff had failed to prove that he was ready and willing to perform his part of the contract, the Courts rightly refused to grant a decree for specific performance in favour of the plaintiff. The finding recorded by both the Courts on this issue is a pure finding of fact, which does not give rise to a substantial question of law. The judgment reported in 2008(4) SCC 612 and relied on by the counsel for the appellant cannot be made applicable to the facts of this case and is not helpful to the case of the plaintiff. In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE APTE