- (1.) One Balwantrao Ganpatrao Pande owned three acres of agricultural land and had entered into an agreement dated 24th April, 1969 with one Tukaram Devsarkar. Appellant No. 1 herein is one of the heirs of Balwantrao Ganpatrao Pande while the respondents herein are the successors-in-interest of Tukaram Devsarkar. 2. The said agreement, with which we are concerned in the present case, was in the following terms: "Tukaram Devsarkar aged about 65, Agriculturist r/o Devsar, Purchaser, (Ghenar)-Balwantrao Ganpatrao Pande aged 76 years r/o Dijadi Post Devsar, Vendor (Denar), who hereby give in writing that a paddy field situated at Dighadi Mouja, Survey No. 7/2 admeasuring 3 acres belonging to me hereby agree to sell to you for Rs. 2,000/- and agree to receive Rs. 1,000/- from you in presence of V.D.N. Sane. A sale deed shall be made by me at my cost by 15-4-1972. In case the sale deed is not made to you or if you refuse to accept, in addition of earnest money an amount of Rs. 500/- shall be given or taken and no sale deed will be executed. The possession of the property has been agreed to be delivered at the time of purchase. This agreement is binding on the legal heirs and successors and assigns."
(2.) It seems that no sale deed, as contemplated by the aforesaid agreement, was executed by Balwantrao Ganpatrao Pande. Thereupon Tukaram Devsarkar filed a suit for specific performance on 18th July, 1974. During the pendency of the suit, by sale deeds executed in September 1974 and March 1975 appellant No. 2 herein became the owner of the land in question. In the plaint which was filed, it was specifically stated that the agreement dated 24th April, 1969 contemplated that in the event of Balwantrao not executing the sale deed the sum of Rs. 1,000/- was to be returned along with an amount of Rs. 500/-. Nevertheless, the prayer in the plaint was for a decree of specific performance requiring Balwantrao to execute the sale deed and in the alternative a decree for return of Rs. 1,000/- plus a sum of Rs. 500/-.
(3.) The trial Court by its judgment dated 8th July, 1977 came to the conclusion that though the plaintiff was entitled to a decree for specific performance of the contract for sale but as the jurisdiction to decree was a discretionary one the interest of justice demanded that no decree for specific performance should be passed. In coming to this conclusion, the trial Court noticed that Balwantrao had died and the defendants to the suit were his nephews and whatever property had been left by Balwantrao had been sold by the nephews during the pendency of the suit. In fact it was only appellant No. 1 who continued to contest the suit.;