1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 281/2010 (Smt. Shewantabai wd/o Laxman Lende & others Versus Harichand Domaji Khullarkar) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms. Nisha Gajbhiye h/f Shri A.D. Lanjewar, counsel for the appellants. Shri P.N. Kendurkar, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 28 , 2010 . Heard. The appellants are the legal heirs of the original defendant. A suit was filed by the plaintiff for specific performance of contract of sale of the suit field. The plaintiff pleaded that the original defendant had agreed to sell the suit field to the plaintiff by an agreement dated 10.03.1976. The original defendant had accepted an amount of Rs.400/- as earnest amount and the sale-deed was to be executed on or before 23.09.1976. The plaintiff pleaded that he was ready and willing to perform his part of contract but, the defendants had failed to perform their part and, therefore, this suit was filed. The defendants denied the claim of the plaintiff and pleaded that the agreement of sale was not a genuine transaction and the thumb impression of the original 2 defendant was obtained by the plaintiff on the agreement of sale fraudulently. The defendants pleaded that the suit filed by the plaintiff was liable to be dismissed. The trial Court, by the judgment dated 08.04.1981, dismissed the suit of the plaintiff on the ground that the agreement of sale was got executed by the plaintiff, fraudulently. The appeal filed by the plaintiff against the judgment dated 08.04.1981 was allowed by the first appellate Court. The first appellate Court and the trial Court had, however, not decided the issue of readiness and willingness of the plaintiff to perform his part of the contract. In the second appeal filed by the defendants, this Court had held that the other findings recorded by the first appellate Court in favour of the plaintiff were just and proper and they did not give rise to a substantial question of law. However, this Court had, by the judgment dated 17.08.2005 in Second Appeal No.266/1990, held that it was necessary for the trial Court to have decided the issue of readiness and willingness of the plaintiff to perform his part. This Court, therefore, remanded the matter to the trial Court only for deciding the issue of readiness and willingness and then directed the trial Court to decree the suit of the plaintiff in case the issue of readiness and willingness was answered in favour of the 3 plaintiff and dismiss the same in case the issue was answered in favour of the defendants. On a remand of the matter to the trial Court, the trial Court decided the issue of readiness and willingness in favour of the plaintiff. The first appellate Court also confirmed the finding recorded by the trial Court on this issue. The finding recorded by the trial Court and the first appellate Court on the issue of readiness and willingness of the plaintiff to perform his part of contract is a pure finding of fact based on a proper appreciation of the material evidence on record. This Court has, in the judgment dated 17.08.2005 in Second Appeal No.266/1990, already held that the other issues were rightly answered by the first appellate Court and it was necessary to decide the issue of readiness and willingness only and to decree the suit in case the plaintiff was found ready and willing to perform his part. Since the findings recorded by both the Courts on the issue of readiness and willingness do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE APTE