Swatanter Kumar, J. - (1.) CIVIL Judge, Senior Division, Shrirampur, District Ahmednagar (for short 'the Trial Court'), in a suit for specific performance and in the alternative for recovery of Rs. 10,000/-, vide his judgment and decree dated 25th July, 1995 partially decreed the suit of the plaintiff (respondent herein), dismissing her claim for specific performance, ordered refund of earnest money with interest at the rate of 6% per annum pendente lite and future, with proportionate cost.
(2.) AGAINST this decree, the respondent filed an appeal before the District Judge, Ahmednagar (hereinafter referred to as 'the First Appellate Court'), who, vide his judgment and decree, dated 28th November, 2000, decreed the suit in its entirety. The Court granted decree for specific performance in respect of the land in question and upon grant of permission by the competent authority, as contemplated under Section 12 (c) of the Maharashtra Re-settlement of Project Displaced Persons Act, 1976, (hereinafter referred to as 'the Re-settlement Act') and also by the Society, as contemplated under Section 47(2) of the Maharashtra Cooperative Societies Act, 1960, (for short 'the Societies Act'), the appellants were entitled to specific performance upon payment of the balance sale consideration of Rs. 30,000/-. It also directed the appellants to submit an application seeking permission from the competent authority and execute a registered sale deed in favour of the respondent herein. The legality and correctness of the aforesaid decree was challenged by the appellants before the High Court of Judicature at Bombay at its Aurangabad Bench in Second Appeal No. 96 of 2001 which came to be dismissed vide judgment dated 17th July, 2001. Aggrieved from the aforesaid concurrent decrees passed by the Courts, the present appeal under Article 136 of the Constitution of India has been preferred by the appellants. The necessary facts are that, according to the respondent, an agreement to sell dated 08.01.1991 was entered into between the parties in terms whereof the appellants had agreed to sell the land admeasuring 1H. 60 R. in Village Pimpri Lokai, Taluka Shrirampur, District Ahmednagar in Block No. 220, the boundaries of which were stated in the plaint. A sum of Rs. 10,000/- was paid at that time and it was agreed that upon obtaining the permission from the competent authority, the demarcation of the land would be effected and the possession of the suit land would be given. The appellants were expected to execute the sale deed in favour of the respondent, as the respondent was always ready and willing to perform her part of the contract. Though the appellants assured that they would execute the sale deed in favour of the respondent, they failed to do so. A notice dated 05.06.1992 was served upon the appellants but no sale deed was executed.
(3.) THEREAFTER, according to the respondent, the appellants also started causing obstruction in the peaceful possession of the respondent and one of such incidents occurred on 11.07.1992, which compelled the respondent to file the suit for specific performance, and in the alternative, for the refund of earnest money along with damages. One Vitthal Laxman Kankate also applied to the Court, vide Exh. 23, to be impleaded as a party, as he claimed right and interest in the said land. This application was allowed. The suit was contested by the appellants who took various legal objections including, that the suit was bad for non- joinder of the necessary parties and, thus, was not maintainable. On merits, it was stated that no agreement, as alleged, was executed between the parties and the entire case, as pleaded by the respondent, was false. It was also averred that defendant No. 2 in the suit (appellant No. 2 in the present appeal) had also filed a suit wherein injunction was granted in favour of the said party.;