1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 396/2008 (Geetabai Narayanrao Barde & another VERSUS Vimal Keshavrao Bairam & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri D.L. Dharmadhikari, counsel for the appellant. Shri Darda, counsel for the R-1, 2, 5 & 6 CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 12, 2009. Heard the learned counsel for the parties. The appellants are the original defendants. A suit was filed by the plaintiffs for specific performance of contract. According to the plaintiffs, the defendants had executed an agreement of sale in favour of the plaintiffs on 24.05.1989. The sale-deed was to be executed on or before 24.11.1989. The plaintiffs pleaded that only an amount of Rs.50,000/- was payable to the defendants at the time of registration of the sale-deed. Though the defendants promised the plaintiffs to execute the sale-deed when the plaintiffs approached the defendants from time to time, the same was not executed and, therefore, the 2 suit was instituted by the plaintiffs for specific performance of contract. The defendants filed the written statement and denied the claim of the plaintiffs. According to the defendants, the property which was agreed to be sold and which was shown by the four boundaries, admeasured only 437 Square feet and not 661 Square feet. The defendants pleaded that on believing the words of the plaintiffs, the extent of the property agreed to be sold was shown as 661 Square feet. It was pleaded by the defendants that certain land belonging to Jayant Talkies was encroached upon by the defendants and the land agreed to be sold to the plaintiffs was 437 Square feet. The defendant sought for the dismissal of the suit. The trial Court, on an appreciation of the evidence on record, decreed the suit of the plaintiffs. The trial Court held that the plaintiffs were ready and willing to perform their part of the contract but, 3 the defendants had failed to perform their part. It was observed by the trial Court that the defendants never raised a dispute about the extent of the land till the issuance of the telegraphic notice dated 22.11.1989. The trial Court held that the defendants failed to prove that the land agreed to be sold admeasured only 437 Square feet. The Court then observed that an amendment was made to the written statement for the first time after a lapse of six to seven years after filing of the suit and the plea of encroachment of the land belonging to Jayant Talkies was raised. The evidence of the measurer, namely Mahadeo Kariye, was disbelieved by the Court for cogent reasons recorded in the judgment. Though the defendants had raised a plea about the mistake, misrepresentation, etc., the defendants failed to enter the witness box to substantiate the pleas. The Court was, therefore, constrained to draw an adverse inference against the defendants. 4 The findings recorded by the trial Court were upheld by the first appellate Court in an appeal filed by the defendants. The findings recorded by both the Courts are pure findings of facts, which do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE