JUDGMENT - KANADE V.M., J.:---None appears on behalf of the respondents though served. Notice before admission was issued on 17-9-1990. This notice was served on the respondent Nos. 1 to 7. Thereafter, the matter was admitted on 10-4-1991. Notice on merits was served on the respondents and legal heirs of respondent No. 3 on 10-7-1992. Further all respondents have been served again on 10-4-2000. This is an old matter of 1990. The original suit was filed in the year 1978, in this view of the matter, the matter is heard finally.

2. This is a second appeal filed by the appellant, who is the original plaintiff, challenging the judgment and order of the Second Additional District Judge, Amravati, who set aside the judgment and decree passed by the Second Joint Civil Judge, Junior Division, Daryapur.

3. Brief facts are as follows:

The original plaintiff filed a Regular Civil Suit No. 126 of 1978 for specific performance of contract or in the alternative for refund of earnest money with damages. It was the case of the original plaintiff that the defendant Wamanrao s/o Anyaji Dharmale entered into an agreement of sale of suit Survey No. 49/2 admeasuring 2 acres, 34 gunthas of village Thillory, Taluka Daryapur, District Amravati for a total consideration of Rs. 4,500/-. This agreement was reduced into writing on 23rd October, 1975 and the plaintiff paid an amount of Rs. 1,500/- towards earnest money to the defendant Wamanrao. It was the case of the plaintiff that the sale deed was to be executed on or before 15th April, 1976. The plaintiff's contention was that he was always ready and willing to perform his part of the contract. However, the original defendant avoided to execute the sale deed and hence notice dated 21st June, 1977 was served on the defendant for compliance of the contractual liability. Hence the plaintiff filed the present suit on 26th October, 1978.

4. The original defendant Wamanrao filed his written statement, denied the execution of the agreement and it was his case that the agreement was executed by way of security for repayment of the loan advance. The contention of the defendant was that it was a loan transaction and that the plaintiff was doing money lending business without licence. It was further contended that original plaintiff was not an agriculturist and, therefore, purchase of agricultural land was invalid unless proper permission was obtained from the authority under the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.

5. The trial Court framed issues and decreed the suit filed by the plaintiff by holding that the plaintiff had proved that the defendant had entered into an agreement of sale on 23rd October, 1975 for a consideration of Rs. 4,500/- and that he had paid earnest money of Rs. 1,500/- to the defendant. The trial Court further gave a finding that the plaintiff was not carrying on money lending business and that the defendant had not proved that the agreement of sale was a loan transaction. The trial Court further examined various other documents and came to the conclusion that the consideration in the agreement of sale was not inadequate and that the total consideration of Rs. 4,500/- was as per the market value of the land. The trial Court, however, did not give any finding on Issue Nos. 14, 15 and 16 by holding that the trial Court had no jurisdiction to decide the said issue. These three issues are reproduced below:

(14) Do the plaintiffs prove that his family was an agriculturist family before coming to Vidharbha?

(15) Do the plaintiffs prove that the joint family was or is agriculturist family?

(16) Do the defendants prove that original plaintiff Laxmandas was not an agriculturist?

6. The defendant preferred an appeal against the said judgment and decree by filing Regular Civil Appeal No. 228 of 1985 which was heard by the Third Additional District Judge, Amravati. The Appellate Court set aside the judgment and decree passed by the trial Court and present appellant

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