This Second Appeal arises out of judgment rendered by learned 2nd Extra Assistant Judge, Ahmednagar, in Regular Civil Appeal No. 462/1980, reversing decree rendered by learned Joint Civil Judge (S.D.), for rescission of an agreement of sale dated 11-4-1972 in suit (RCS No. 568/74).

2. Original plaintiff - Damodhar preferred this appeal. His legal representatives have continued the same. Respondent Namdeo was original defendant in the suit before the trial Court. For sake of convenience, I shall refer to the parties by their first names.

3. Indisputably, Damodhar owned 1/3rd share out of field bearing S.No. 1654/2A situated at village Sasewadi. Admittedly, by an agreement of sale dated 11-4-1973 he agreed to alienate the undivided 1/3rd share owned by him to Namdeo for consideration of Rs. 8,000/- (Rupees eight thousand). The terms of agreement were reduced into writing and the agreement was registered. He received amount of Rs. 4,000/- (Rupees four thousand) from Namdeo towards earnest amount. At the relevant time consolidation work under provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, was being implemented in the village. Therefore, sale permission was required for the transfer of the undivided share in the suit land. The parties agreed that necessary sale permission would be obtained from the competent Consolidation Officer. It was also agreed that Namdeo shall pay balance consideration amount within eight (8) days after receipt of the sale permission and the transaction shall be completed. It is an admitted fact that Namdeo was inducted into actual possession of the suit land in pursuance to the terms of the agreement.

4. Briefly stated, case of Damodhar (plaintiff) in the trial Court was that Namdeo was to obtain the sale permission as per terms of the agreement. He did not obtain such permission. So, Damodhar issued a notice dated 11-9-1974 (Exh.83) and called upon him (Namdeo) to comply with the terms of the agreement. The notice drew blank. Neither reply was given by Namdeo nor he delivered back possession of the suit land. It was agreed between the parties that if default would be committed by Namdeo then the earnest amount of Rs. 4,000/could be forfeited by Damodhar. The agreement was rescinded as per terms of the contract and hence, Damodhar sought declaration that Namdeo has left no concern and rights with the suit land as per agreement of sale and was liable to deliver back possession thereof. He sought further declaration that the earnest amount of Rs. 4,000/- (Rupees four thousand) stands forfeited in his favour. He claimed restoration of possession in view of the decision of the contract.

5. By filing written statement (Exh.14) Namdeo resisted the suit. He denied that he was required to obtain sale permission. He contended that Damodhar agreed to obtain the sale permission from competent authority and accordingly had filed an application for such permission. He further contended that he did not commit breach of the contract. He asserted that he was ready and willing to perform his part of the contract by paying remaining consideration of Rs. 4,000/within eight (8) days from the date of the receipt of sale permission. He asserted further that field S.No. 1654/2A is a composite land in which Rukrninibai Vishwanath Sase, Anusayabai Wlo Kisan and he have 1I3rd share each. He was in possession of 1I3rd share of Anusayabai as a tenant. Said Anusayabai alienated her undivided 1I3rd share to Damodhar on 2-8-1971 without delivery of Khas possession. He asserted that said 1/3rd share purchased by Damodhar from Anusayabai is the subject-matter of agreement of sale dated 11-4-1973 which Damodhar agreed to alienate in his favour. He asserted that he is entitled to seek protection of possession under section 53-A of the Transfer of Property Act. He contended that the contract could not be terminated by Damodhar when there was no default on his part. Consequently, he urged for dism