1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.380 OF 2002 Shri Gurningappa Rachappa Akkalkot : Appellant versus Kalappa Parappa Tikoti & ors. : Respondents. Shri.S.S.Patwardhan for the Appellant. Shri.Satyajit Mirajkar i/by Mr.G.S.Godbole for Respondent Nos.2 & 3. CORAM : R.M.SAVANT, J. DATED : August 20, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 26th July 2001 passed by the Second Additional District Judge, Sangli by which the Judgment and Decree of the trial Court in so far as the refusal of the relief of specific performance of the agreement and the injunction claimed by the Plaintiff is concerned, came to be confirmed, however, in so far as the refusal in respect of the refund of earnest money is concerned, the decree of 2 the trial Court came to be set aside and the Defendant Nos.1 to 7 were directed to refund the amount of Rs.5500/- with interest at the rate of 6% per annum from the date of passing of the decree till realization of the amount of Rs.5500/-. 2. The Appellant is the original Plaintiff in R.C.S. No.113 of 1985 filed by him for specific performance of contract of the agreement dated 3.4.1975 in respect of Survey No.29, admeasuring 16 Acres and 13 gunthas. It is the case of the Plaintiff that the said land was agreed to be sold to him by Parappa Kallappa Tikoti and his bother Sidhappa Kallappa Tikoti by the said agreement for Rs.13,000/- for the legal necessity of their family. It was the case of the Plaintiff that he was put in possession of the land in question and he has been cultivating the same and apprehending obstruction from the Defendants, he filed the said suit. 3. The Defendants, by filing their written statement, denied that any such transaction of the nature alleged by the Plaintiff ever 3 took place. The defendant also denied that the Plaintiff was put in possession of the property in question. The Defendant further contended that the Plaintiff did not ask for the agreement to be executed from the persons who had agreed to sell the land to him viz. Parappa and Sidhappa in their life time but has filed the suit after their death. The defendants further contended that Defendant No.8 had filed a suit for partition against Defendant No.1 Parappa being R.C.S. 65 of 1979 and the said suit came to be decreed. 4. The parties went to trial. The trial Court on the basis of evidence and on the basis of finding recorded in the said R.C.S.No.65 of 1979 came to a conclusion that the Plaintiff has not proved the said agreement to sale dated 3.4.1975. The trial Court rejected the evidence of the son of the scribe, who had scribed the said agreement, holding that his evidence could not be accepted to prove the said agreement. The trial Court also expressed suspicion as regards the said agreement. This was on the basis that though it was the case of the Plaintiff that the document was written in pencil, it was in fact in ink. The trial Court also held that the Plaintiff could not be 4 entitled to the refund of earnest money as claimed by him. The trial Court, on the basis of the material viz. 7X12 extract and the evidence led on behalf of the Plaintiff himself, also held that the Plaintiff had failed to prove that he was in possession of the property in question. The trial Court, therefore, vide its Judgment and order dated 30.4.1996 dismissed the said suit. 5. Aggrieved by the said Judgment and order dated 30.4.1996 passed by the trial Court, the Plaintiff filed R.C.A. No.281 of 1996. The lower Appellate Court, on the basis of the material that was on record, also recorded a finding that the Plaintiff had failed to prove the said agreement dated 3.4.1975. The lower Appellate Court also held that the statement of Parappa recorded in the R.C.S.No.65 of 1979 filed by Defendant No.8 would have relevancy but could not act as conclusive proof of the admission of the said Parappa. The lower Appellate, therefore, confirmed the decree passed by the trial Court. However, in so far as refund of the earnest money is concerned, the lower Appellate Court directed refund of Rs.5500/- to the Plaintiff. The lower Appellate Court also recorded a finding that the document in 5 question is suspicious in view of the evidence that was adduced on record in respect of it. 6. Both the Courts have, therefore, recorded a finding of fact as regards the said agreement dated 3.4.1975 and have concurrently held that the said document has not been proved by the Plaintiff. The said document, being the fountain head of the claim of the Plaintiff, both the Courts below did not deem it fit to grant the relief of specific performance sought by the Plaintiff. 7. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. Hence the above Second Appeal is dismissed. 8. In view of dismissal of the Second Appeal, the Civil Application No.513 of 2002 does not survive and the same is disposed of as such. [R.M.SAVANT, J] 6