SADASHIV NIVRUTTI GHODKE Vs. NAMDEV APPA GHODKE

JUDGEMENT

(1.) -THE second appeal is preferred against the judgment and decree dated I6th October, 1980 passed by the III Extra Assistant Judge, solapur, in Civil Appeal No. 474 of 1979 preferred against the judgment and decree dated 26th July, 1979 in Regular Civil Suit No. 312 of 1975 passed by the Civil Judge, Junior Division, Pandharpur.

(2.) IN this appeal, respondent is original plaintiff, who filed the aforesaid civil suit for specific performance of the contract. It is contended on behalf of the plaintiff that the appellant-original defendant agreed to sell the suit land bearing Gat No. 386 for Rs. 3500/- and against the agreement, to sell dated 13th July, 1970 he also received an amount of Rs 2000/- before the Sub-Registrar towards part of consideration. Tt is the case of the plaintiff, that on some pretext or the other, appellant-defendant failed to execute the sale deed and, therefore, after serving notice dated 7-9-1975 (Exhibit "7), plaintiff filed the aforesaid suit for specific performance. The trial Court by its judgment and decree dated 26th July, 1976 passed the decree for specified performance on plaintiff's committing default in the payment of Rs. 1500/ -. Against the aforesaid judgment and decree passed by the Civil Judge, Junior Division, Pandharpur, dated 26th July. 1979 in regular Civil Suit No 312 of 1975 the defendant preferred an appeal being civil Appeal No 474 of 1979 before the III Extra Assistant Judge, Solapur, who by his judgment and decree dated 16th October, 1980 confirmed the decree of specific performance passed by the trial Court. However, the lower appellate Court modified the other part of the decree passed by the trial Court. Against the aforesaid judgment and decree of the lower appellate Court dated 16th October, 1980, the appellant-defendant has preferred the present second appeal.

(3.) MR. R. S. Apte, learned counsel appearing on behalf of the appellant-defendant, firstly, contended that the transaction entered into between plaintiff and defendant was in the nature of a security and it was not a sale. Since there is a concurrent finding of fact on this issue against the appellant-defendant, I do not wish to disturb the said finding of fact.