This Second Appeal is initiated at the instance of defendant against whom decree has been passed by learned Additional District Judge, Washim the first appellate Court, in Regular Civil Appeal No. 78/ 1997 decided on 14.7.1998. Parties shall hereinaf1er be referred as their original status as "plaintiff' and "defendant" in the suit, for the purpose of convenience.

2. Facts briefly mentioned are: the plaintiff had filed Regular Civil SuitNo.37/1994 in the Court of learned Civil Judge Jr. On. Risod for specific performance of the contract of sale, with alternative prayer for refund of consideration with damages. According to the plaintiff on or about 27.2.1991, the defendant had entered into an agreement to sell the suit land; field S. No.53/1 admeasuring 2 acres, 2 gunthas situated at Belkhed in Risod Taluqa in Washim District (Old Dist.-Akola) under an "Isaarchitthi" for earnest money of Rs.17,000/- paid to the defendant. It was agreed that balance consideration would be paid at the time of execution of sale deed on or before 6.5.1991. The plaintiff claimed that he was ready and willing to perform his part of contract, but the defendant on some pretext or the other, avoided to perform his part of contract. On 6.5.1991 the plaintiff was present in the office of Sub Registrar with all requirements in order to perform his contract, but the defendant remained absent and evaded to attend the office of Sub-Registrar. The plaintiff ad called upon defendant by notice dated 14.2.1991 to perform his part of the contract. Despite it the defendant has failed to perform his art of contract.

3. The suit was resisted on the ground that it was not a true transaction of sale but there was debt/encumbrance from the bank on the suit land therefore, the defendant had approached the plaintiff to borrow and that the plaintiff took disadvantage of the document to institute the false suit.

4. The trial Court had held that the plaintiff failed to prove the agreement to sell and dismissed the suit.

5. Feeling aggrieved and dissatisfied with the dismissal of the suit, the plaintiff had preferred Regular Civil Appeal No.78/1997 in the District Court, Washim. Learned Additional District Judge by judgment and order dated 14.07.1998 held that the agreement to sell suit land was proved and the plaintiff was ready and willing to perform his part of the contract and was entitled to the relief of specific performance of contract. Thus, the trial Court's judgment and order was set aside and the suit was decreed with costs whereby the first Appellate Court directed the defendant to execute the sale deed by accepting balance consideration.

6. The instant Second Appeal was admitted on the following substantial questions of law, which were raised as it is, on behalf of the appellant:

"(1) Whether the Appellate Court can set aside the judgment and decree passed by the trial Court in the suit for specific performance of the contract whereby the learned trial Court dismissed the suit of the plaintiff for specific performance of contract by giving valid reasons? In as much as it is now well established principle that granting or refusing the specific performance is discretion of the Trial Court and the same cannot be interfered by lower Appellate Court.

(2) Whether the lower Appellate Court committed error in holding Sections 91 and 92 of the Indian Evidence Act and the evidence which shows that the agreement of sale is nominal, bogus and never intended to be acted upon.

(6)That, the lower Appellate Court erroneously discarded the testimony of attesting witness, namely, Sadashiv who deposed that, the said transaction is the money lending transaction. Even though he was examined as witness of the plaintiff but was not cross-examined by the plaintiff after he admitted that the said transaction is the money lending transaction."

7. I have heard submissions at the Bar and perused the impugned judgment and order as also judgment and order which was delivered by the trial C