NAGORAO PANDURANG HEDAU Vs. SAKHU DIWALU AKARE

JUDGEMENT

(1.) The original plaintiff has filed this Second Appeal challenging the concurrent judgments and decrees dismissing his suit for specific performance filed against original respondents No. 1 & 2. Original Respondent No.3 . Ganpatrao is the purchaser of Western portion of property from original owner Diwalu and therefore he has been added as party. Respondents No. 1 & 2 before this Court are legal heirs of deceased Diwalu.

(2.) The suit was filed on the strength of agreement for sale dated 24.9.1974 mentioning that Eastern portion of plot No. 383 was agreed to be sold for Rs.3,000/- by Diwalu in favour of present appellant. The agreement contemplated completion of sale deed by 20.9.1976 and till the time of agreement, amount of Rs.2,900/- was already given to Diwalu and balance payment of Rs.100/- was to be made at the time of execution of sale deed. It was also stated that Diwalu placed the appellant in possession of said Eastern portion. In relation to Western portion, appellant . plaintiff stated that Diwalu had agreed to sell remaining i.e. Western portion also to appellant and for that purpose he had taken advance of Rs.1,000/-. The said advance was secured by obtaining promissory note and stamp paper was also purchased to write separate agreement in relation to Western portion. As scribe was not available, agreement could not be written. The agreement dated 24.9.1974 (Exh. 43) or any payment as mentioned therein was denied by Diwalu. He also denied any agreement to sell Western portion to the plaintiff - appellant. He contended that plaintiff was occupying the Eastern portion as his tenant on monthly rent. In relation to this, trial Court framed various issues and after answering the same, dismissed the suit. However, it directed the legal heirs of Diwalu to return the amount of Rs.2,300/- to the plaintiff. The said amount is towards advance of Rs.1,300/- as mentioned in agreement Exh. 43 and advance of Rs.1,000/- as evidenced in promissory note Exh. 47. The appellate Court has maintained the dismissal of suit.

(3.) I have heard Shri Mehadia, learned counsel for the appellant . original plaintiff and Shri Choudhari, Advocate for respondents No. 2, 3(b) and 3(c).