JUDGMENT - LAVANDE A.P., J.: - Heard Mr. S.R. Deshpande, the learned Counsel for the appellant and Mr. A.V. Gupta, the learned Counsel for the respondent.

2. By this appeal, the appellant takes exception to the judgment, order and Decree passed by the Additional District Judge, Buldhana dated 11-4-1988 in Regular Civil Appeal No. 85/85 dismissing the appeal filed by the present appellant against the judgment, order and decree dated 30-1-1985 passed by the Civil Judge, Jr. Dn., Chilkhli in Regular Civil Suit No. 224 of 1983.

3. Briefly, the facts which are relevant for disposal of the present appeal are as follows:

The respondent herein who is the original plaintiff filed the above mentioned suit against the appellant herein who is the original defendant for specific performance of contract and for possession. The respondent claims specific performance of contract in respect of the property bearing No. 7/1, admeasuring about 1 acre and 10 gunthas owned and possessed by the present appellant. According to the plaintiff, there was an agreement of sale in respect of the suit property for a consideration of Rs. 3,000/-. On the date of execution of the agreement of sale, an amount of Rs. 1500/- was paid and the balance amount was to be paid at the time of execution of the sale-deed. The possession of the suit property was to be handed over at the time of execution of the sale-deed and the date fixed for execution of the sale-deed was 25-2-1981. The agreement of sale entered into between the plaintiff and defendant on 14-7-1980. Upon refusal by the defendant to execute the sale-deed and to hand over the possession, the plaintiff filed the above mentioned suit for specific performance of contract and possession. The defendant resisted the claim and filed written statement. The defence of the defendant was that the document was executed as a security for the loan amount of Rs. 1000/- obtained by him from the plaintiff. Upon the pleadings of the parties, the following issues were framed.

1. Does the plaintiff prove that the defendant had contracted to sale to him the suit land for consideration of Rs. 3000/-?

2. Whether the defendant prove that he had executed the said Isar-chitthi as security for the loan of Rs. 1000/- obtained by him from the plaintiff?

3. Does the defendant prove the repayment of alleged loan?

4. Whether plaintiff is/was ready and willing to perform his part of the contract?

5. Whether the plaintiff is entitled for decree of specific performance of his part of contract?

6. What relief and costs?

4. The learned trial Court answered Issues 1,4,5 in favour of the plaintiff and Issues 2 and 3 against the defendant. Consequently, the trial Court decreed the suit and granted specific performance of the contract and further directed the defendant to hand over the possession of the suit property to the plaintiff.

5. Aggrieved by the Judgment, Order and Decree passed by the trial Court, the appellant herein preferred appeal. The Appellate Court framed the following point for determination.

"Has the appellant shown that the lower Court has erroneously passed a decree against him?"

The Appellate Court after hearing both sides dismissed the appeal and held that the respondent had proved that there was an agreement of sale in respect of the suit property and further that the plaintiff was all the time ready and willing to perform his part of the contract. Concurring with the judgment, order and decree passed by the trial Court, the Appellate Court dismissed the appeal. Being aggrieved by the judgment, order and decree passed by both the courts below the appellant has preferred the present second appeal.

6. The appeal was admitted on 28-6-1988 Ground No. 10 in the memo of appeal was formulated as a substantial question of law Ground No. 10 of the Memo of Appeal reads as under:

"That both the lower courts ought to have held that the land which is agreed to be sold is fragment and hence the specific performance of the agreement of sale is in b

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