1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 520 OF 1989 Keshav Laxman Patil (Deceased) – per L.Rs. .... APPELLANTS V E R S U S Kautik Laxman Patil & Others. .... RESPONDENTS ----------------------------------------------------------------------------------------------------------------- Mr. A.G. Godhamgaonkar, Advocate for appellant. Mr. M.V. Deshpande, Advocate for Resp. No. 1. CORAM : S.V. GANGAPURWALA, J. DATE : 19/11/2010 ORAL ORDER : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for specific performance of contract in respect of eastern half of land G.No. 5 on the ground that defendant no. 1 had executed an agreement of sale in his favour on 20/12/1976 agreeing to sale the said property for consideration of Rs. 10,000/-. Rs. 5,000/- were paid on the date of said agreement. The remaining amount of consideration was also paid, but defendant no. 1 with a view to deprive him, had illegally sold the said property to defendant nos. 2 and 3. 3. The Trial Court vide its Judgment and decree dated 29/4/1983 dismissed the said Suit for specific performance and decreed it to the extent of 2 refund of Rs. 10,000/- with costs. 4. The plaintiff being aggrieved by the non grant of relief of specific performance, preferred R.C.A. No. 276 of 1983 before the District Court, Jalgaon. The 3rd Additional District Judge, Jalgaon vide its Judgment and decree dated 12/7/1989 dismissed the said Appeal. 5. The present Second Appeal has been admitted on following substantial questions of law : I) Whether Exh. 66, agreement and contents therein ought to have been read in total isolation of the evidence and the amounts deposed as paid have no connection with the contents of Exh. 66 agreement to sale and recital therein of the payment of Rs. 5,000/- as earnest money ? II) Whether Tabe Pawati executed simultaneously along with agreement of sale has to be independently considered, torn of crop statement and entries in revenue record and more particularly when the plaintiff stated that he was wrongfully dispossessed on 14th June, 1979 ? III) When the agreement of sale Exh. 66 is held as proved and when it is seen that seizable amount is paid, it is wrong to hold that the agreement of sale was nominal which was never to be acted upon ? IV) Whether it is wholly wrong to hold that the agreement of sale Eh. 66 has become infructuous 3 and redundant when a document entered into between the parties by way of Act in intervivond and never become infractuous and redundant in view of subsequent developments ? 6. Mr. Godhamgaonkar, the learned counsel for the appellant submitted that though both the Courts have refused the relief of specific performance, but the Trial Court has not given any reasoning while refusing the relief of specific performance. The lower appellate Court has erroneously concluded that the agreement in question was a nominal agreement of sale. 7. Mr. Godhamgaonkar, the learned counsel further submitted that when the agreement ( Exh. 66 ) recited therein that payment of Rs. 5,000/- was received, then it was an error on the part of the Courts below to hold that the break up which is given in evidence is referable to the earnest amount only. According to the learned counsel, the Courts below committed an error in ignoring the contents in agreement of sale ( Exh. 66 ). The Tabe pawati ( Exh. 67 ) also substantiates the fact that the agreement of sale was genuine and the parties in fact had agreed to sale and purchase the said property. The learned counsel contended that the said agreement would not be redundant document in view of the subsequent circumstances. As the agreement of sale in favour of the plaintiff was prior in point of time, the plaintiff would be entitled for the relief of specific performance. According to the learned counsel the reasonings adopted by the Courts below while dealing with the matter, are not in consonance with the provisions of the Evidence Act. When the agreement has been proved, there was no impediment for the Courts to grant the relief of specific performance. 8. Per contra, Mr. M.V. Deshpande, the learned counsel for original defendant no. 1 contended that the Courts have properly appreciated the nature of the document. Though the document is styled as agreement of sale, in fact it is a nominal one. The evidence on record as discussed by the Court shows that the same is a nominal document. The appreciation of evidence at the hands of the 4 Courts below is not perverse but is a possible and plausible view taken by the Courts below, which can not be interfered with in the limited jurisdiction of the provisions of Section 100 of the Code of Civil Procedure. 9. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments delivered by both the Courts and also the substantial questions of law, on which the Appeal has been admitted. 10. Though the Judgment of the trial Court is delivered in a slip-short manner , which is bereft of necessary discussion on the agreement but the appellate Court has considered the circumstances to come to the conclusion that the agreement of sale dated 20/12/1976 was a nominal transaction. In paragraph no. 8 of the Judgment, the lower appellate Court has discussed about the consideration amount. The plaintiff has contended that he has paid the total consideration amount under the agreement, whereas if the document at Exh. 61 is perused, it is seen that the said amount as detailed is paid is prior to the execution of the agreement of sale. If the said amount was the part of consideration, then the same would have found mention in the agreement of sale. The explanation given for not writing the amount paid earlier in the agreement of sale i.e. “ lack of space ”, can not be digested. 11. The Courts below have also taken into account the conduct of the parties and have come to the plausible conclusion that the agreement of sale is not genuine one. The Courts below have exercised their discretion in not granting the relief of specific performance. To grant the relief of specific performance, is a discretion of the Court. The discretion exercised by the Courts below is a reasonable one. 12. In light of the above, no error can be said to have been committed by the Courts below by refusing the relief of specific performance . Even as per Section 16 (C) of the Specific Relief Act, the plaintiff has failed to plead and prove readyness and willingness. He has stated that total consideration has been paid. 5 The break up of which he has given, shows that the amount which is alleged to have been paid towards the total consideration amount is prior to the agreement of sale and agreement of sale recites only receipt of Rs. 5,000/-. On that count also, the plaintiff fails to satisfy the ingredients of Section 16 ( C) of the Specific Relief Act. 13. For all the aforesaid reasons, no error can be found in the Judgment of the Courts below. As such, the Second Appeal is dismissed, however, with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 520.1989