SHRAWAN GOPALRAO WAGHMARE Vs. TUKARAM DAMDUJI BALWIR

JUDGEMENT

(1.) The Original Plaintiff in Civil Suit No. 139/1979 has filed this Second Appeal challenging reversing judgment dated 5.1.1990 delivered by the Additional District Judge, Wardha in Regular Civil Appeal No. 151/1984. This appellant filed Regular Civil Suit No. 139/1979 against the deceased Respondent . Tukaram for specific performance of contract of sale of suit field. He stated that initially there was an agreement for sale of field by name .Gargoti. and amount of Rs. 10,000/- was paid by him as earnest to the defendant at that time. However, the sons of defendant objected on the ground that the field Gargoti was ancestral property. The defendant therefore entered into another agreement of sale of field by name .Wadhyache.. The price of that field was fixed at Rs. 21,000/-. Earnest money of Rs. 10,000/- of previous agreement was adjusted and plaintiff again paid Rs. 6,250/- more to the defendant and defendant executed executed earnest money note of Rs. 16,250/- in total. Balance amount of Rs. 4750/- was to be paid at the time of execution of the sale deed. As the defendant avoided to execute the sale deed he filed suit for specific performance. The defendant filed his written statement and denied all allegations. He contended that field Wadhyache was purchased by him from income of ancestral property. He further stated that there was no agreement of sale between the parties and he had taken loan from the plaintiff. In view of these pleadings the Trial Court framed total 9 issued and held that the plaintiff was entitled to grant of specific performance. It further held that the defendant could not prove that earnest note executed for sale of Gargoti field was nominal and it was as a security of loan. It further held that the appellant did not prove that when he asked for grant of time of one year more for repayment of the said loan, other earnest note in relation to Wadhyache field was got executed from him by the plaintiff, as security. It therefore, directed the defendant to execute sale deed of suit field survey no.87/2 situated at Marda, in favour of the plaintiff. This was challenged by the respondent by filing Appeal under Section 96. The Appellate Court i.e. Additional District Judge, Wardha vide his judgment dated 5.1.1990 partly allowed the appeal and it held that the plaintiff is entitled to refund of amount of Rs. 13,000/- only with interest at 6% p.a. from the date of suit till realization.

(2.) This Court has on 21.09.1990 admitted the Second Appeal without formulating any substantial question of law, by observing that ground nos. 5 and 8 in the appeal memo are substantial question of law. The said grounds in memo of Second Appeal read as under :

(3.) In this background I have heard Advocate Shri B.S. Deshpande, for appellant/ plaintiff. No body has appeared for legal heirs of deceased respondent . Tukaram.