ANUSAYA PURSHOTTAM PATIL Vs. SHOBHA

JUDGEMENT

(1.) The original plaintiff has by this second appeal challenged reversing judgment and decree dated 29-6-2005 delivered by 10th Ad hoc Additional District Judge, Nagpur in regular Civil Appeal No. 463 of 2000. The suit was filed by present appellant vide special Civil Suit No. 554 of 1986 against present respondent No. 1 Smt. Shobha for grant of specific performance and in the alternative for recovery of Rs. 50,100/ -. The agreement dated 30-9-1985 was with one Subhadrabai w/o Rambhau Kolhe and suit as filed on 4-12-1986 was also against Subhadrabai. Subhadrabai expired during pendency of suit on 12-6-1990. Thereafter present respondent Shobha was brought on record as her legal representative and daughter. The trial Court decreed the suit on 30-7-1992.

(2.) The reason given by Appellate Court for reversing the judgment of trial court is that present appellant/plaintiff did not bring on record husband of subhadrabai by name Rambhau Kolhe in civil suit and as such specific performance could not be granted. The Appellate Court has, therefore, ordered shobha-present respondent to refund proportionate amount of earnest to the appellant. This Court has admitted the second appeal on 6-4-2007 by framing the following substantial question of law :

(3.) In this background, I have heard Advocate Shri S. P. Hedaoo with advocate Shri R. N. Patil for appellant/plaintiff, Advocate Shri S. A. Deo for respondent No. 1 Shobha and Advocate Shri A. Y. Pathak for respondent No. 2 rambhau.