1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 399 OF 2008 (Pramilabai Domaji Ghatol vs. Kirankumar Brajlal Shaha) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 06, 2009. Heard Shri Bhuibhar, learned counsel for the appellant – original defendant and Shri Choudhary, learned counsel for the respondent – original plaintiff. The challenge in the Second Appeal is to the concurrent judgments and decrees delivered by the Courts below granting the claim for specific performance by present respondent. Shri Bhuibhar, learned counsel has argued that the provisions of Section 20 of Specific Relief Act have been overlooked and in present circumstances, specific performance has been erroneously awarded. He points out that the appellant is a lady having only suit land with her and if that land is sold out, she will become landless. He states that there was a fiduciary relationship between parties inasmuch as she was purchasing cattle fodder from the respondent on credit from 2 time to time. He further states that she had taken loan of Rs.20,000/- and this position was also reflected from the statements of accounts produced as Exhs. 32A to 32M by the respondent himself. He invites attention to consideration of this aspect by lower appellate Court in para 12 of its judgment and argues that the amount of Rs.20,000/- has been mentioned as arrears due i.e. arrears recoverable from the present appellant. He states that as all these relevant aspects having bearing on application of mind qua Section 20 of Specific Relief Act, are not looked into, the appeal needs to be admitted on substantial questions of law drafted in the Second Appeal. Shri Choudhary, learned counsel, on the other hand, states that Exhs. 32A to 32M are extracts of accounts of agricultural land purchase and the lower appellate Court as also trial Court have correctly evaluated the situation. He further states that there was no evidence of any money- lending transaction on record and he points out that the appellant has not entered the witness box though an opportunity was earlier given to her by the lower appellate Court while deciding Regular Civil Appeal No. 153 of 2000. He, therefore, contends that the contention that the suit land is the 3 only land with present appellant, cannot be relevant consideration under Section 20 of Specific Performance Act. With the assistance of both the learned counsel, I have perused both the judgments. It is apparent that after trial Court decreed the suit earlier on 20.12.1995, earlier Regular Civil Appeal filed by present appellant was allowed on 12.7.2004 and matter was remanded back to enable the present appellant to lead evidence in support of her contentions. In spite of this specific opportunity, the appellant again did not enter the witness box. Thus, if there is any fiduciary relationship or there was any money lending transaction, the evidence to that effect could have been brought on record by the appellant but that opportunity has not been utilised. Shri Bhuibhar, learned counsel has tried to contend that the appellant is a poor and innocent lady and she has acted on the advise given to her by her counsel. However, in the present circumstances, the arguments cannot be accepted. Moreover, the argument is not supported by record also. The appreciation of documents at Exhs. 32A to 32M by lower appellate Court in para 12 of its judgment cannot be labelled as either erroneous or perverse. The accounts are of purchase of 4 agricultural land and therefore mere mention of words “amount due” cannot be of any relevance insofar as the present contention of appellant is concerned. The appellant may have suit land as only means of survival but then she has avoided to enter the witness box and had also failed to substantiate the prejudice, if any, caused thereby. Merely because the appellant holds only one property, that does not disqualify her from agreeing to sell it to the respondent. In the circumstances, no substantial question of law arises in this Second Appeal. The same is dismissed. No order as to costs. Shri Bhuibhar, learned counsel states that interim order protecting the possession of appellant is in operation since long and it should be continued for four weeks so as to enable the appellant to take further appropriate steps in the matter. Shri Choudhary, learned counsel has no objection. In the circumstances, interim order operating in the field is continued till 9th February 2009 and shall cease to operate automatically thereafter. JUDGE *GS.