PANDURANG BAYAJI PISAL Vs. DAGADU ARJUNA JADHAV

JUDGEMENT

(1.) Special Civil Suit No. 115 of 1988 filed by the appellant-plaintiff was dismissed by the trial Court by its judgment and order dated 12.10.1990. The appellant, who is the original plaintiff, preferred Regular Civil Appeal No. 443 of 1990, which is partly allowed by the lower appellate Court on 03.08.1992. The lower appellate Court has passed a decree for specific performance of contract in favour of the appellantplaintiff and against the defendant no.1 in respect of the agriculture land Block No. 91, situated at Bopegaon, to the extent of 29R of land excluding 2R of land which was purchased by Defendant Nos. 3 and 4 under a registered sale deed dated 11.04.1988 from the defendant nos. 1 and 2. None of the defendants are before this Court in this second appeal, but it is the plaintiff who is before this Court challenging the judgment and decree passed by the Courts below to the extent it refuses to grant a declaration that the sale deed dated 11.04.1988 executed by the defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 be declared as not binding the plaintiff.

(2.) The finding recorded by the lower appellate Court that the plaintiff has established contract dated 03.05.1982 for sale of suit land for total consideration of Rs.27,000/- with the defendant nos. 1 and 2, is not in dispute. The plaintiff has already paid an amount of Rs.25,000/- towards part consideration and this is also accepted by the lower appellate Court. The lower appellate Court has, therefore, directed the plaintiff to pay the balance amount of Rs.2,000/- to get the sale deed executed from the defendant nos. 1 and 2. It is also not in dispute that the suit property is Block No. 91, admeasuring total 31R, out of which 2R of land was sold by the defendant nos. 1 and 2 to the defendant nos. 3 and 4 by sale deed dated 11.04.1988. The agreement dated 03.05.1982 with the plaintiff was in respect of the entire 31R of land and it was prior in point of time of sale deed dated 11.04.1988.

(3.) In the aforesaid factual background, one of the substantial questions of law framed by this Court while admitting the matter on 26.11.1992 was, whether the lower appellate Court was justified in excluding the area of 2R of land sold to the defendant nos. 3 and 4 by the defendant nos. 1 and 2 in terms of sale deed dated 11.04.1988