The grant of specific performance is discretionary, considering undue hardship to subsequent bona fide purchasers, outweighing the plaintiff's claim based on a disputed agreement.

JUDGMENT :

SHAILESH P. BRAHME J.

Taken up for final hearing with the consent of the parties.

02. Aggrieved by the judgment and decree dated 10.11.2006 passed by Lower Appellate Court in Regular Civil Appeal No 123/2002 reversing the decree of trial court and thereby granting decree for specific performance of contract and possession, present appeal is preferred by original defendant nos. 3 to 5.

03. Respondent no. 2 is the original plaintiff, who had filed Regular Civil Suit No. 10/1980 for specific performance of contract and possession. Respondent nos. 1 and 3 are the real brothers, who are the owners of the suit land. Appellants are the subsequent purchasers, who were impleaded in the suit belatedly. The Trial Court vide judgment and decree dated 12.04.2002 dismissed the suit for substantial relief of specific performance of contract and possession but awarded alternate prayer of refund of earnest amount with interest. Respondent no. 1 preferred Regular Civil Appeal No. 123/2002 and simultaneously cross objection was preferred by respondent no. 2-original plaintiff, which is ultimately allowed by the lower Appellate Court. The parties are referred to by their original status in the trial Court.

04. The subject matter is land measuring 9 Acres 10 Guntha of Sy. No. 24 situated at village Pirangamwadi, Tq. Ausa. It is the case of the plaintiff that Sy. No. 24 measuring 19 Acres 23 Guntha was of belonging to defendants. An agreement to sale for 09 Acres and 10 Guntha from Sy. No. 24 was executed by defendant No. 1 on 11.04.1975 by accepting Rs. 8,051/- as an earnest amount out of Rs. 14,000/-. The balance amount was to be paid by October 1976 for executing a sale deed and handing over of possession. The plaintiff is stated to have persisted the defendants for execution of sale deed but it was not acceded to. Then notice was issued on 23.11.1978 calling upon the defendants to execute the sale deed. It is further contended in the plaint that mutation entry No. 144 was effected on 22.09.1976 showing partition between the brothers and allotment of Sy. No. 24 to defendant No. 2, which was bogus and concocted. It is contended that defendant No. 2 fraudulently executed sale deeds in favour of the defendant Nos. 3 to 5. In this backdrop, suit is filed for specific performance of contract and possession.

05. The defendant No. 1 contested the suit by disputing agreement to sale. It is stated to be money lending transaction and sign on blank stamp paper was being given to the plaintiffs. The defendant No. 1 is stated to be ready to repay the amount, but that was not accepted. It is contended that bogus agreement was got executed by the plaintiffs The defendant No. 2 is owner of the suit land due to partition between them. It is further contended that the year of 1976 has been manipulated. It is further contended that the suit is not within limitation.

06. The defendant No. 2 filed independent written statement to contend that there was partition in between the brothers in the year 1970 resulting into allotment of Sy. No. 23 to the defendant No. 1 and survey No. 24 to the defendant No. 2. The defendants are stated to have alienated their shares. He is stated to be exclusive owner of Sy. No. 24, which is further alienated by him to the remaining defendants with handing over of possession.

07. The defendant Nos. 3 to 5 were impleaded in the year 1994 in the suit. They claim to be bonafide purchasers for value of the suit land alienated by registered sale deeds by the defendant No. 2. It is stated that they were not aware of any agreement to sale or pendency of the suit w