JUDGMENT :

SANGEETA K. VISHEN, J.

1. Captioned appeal is directed against the judgment dated 18.03.2000 (hereinafter referred to as “the impugned judgment) passed in Special Civil Suit of 176 of 1991 (hereinafter referred to as “the Civil Suit”). Special Civil Suit no.176 of 1991 was preferred by the appellants-original plaintiffs seeking decree for specific performance of the agreement to sell dated 01.06.1989 (hereinafter referred to as “the agreement to sell”) executed by the original defendants in favour of the appellants-original plaintiffs of the land bearing survey no. 301/4, block no. 403 admeasuring 11011 sq. yards i.e. 9206 sq. mtrs. (hereinafter referred to as “the land in question”). Regular Civil Suit No. 399 of 1990 was previously filed by the appellants-original plaintiffs, inter alia, praying for permanent injunction restraining the defendants or their agents from transferring the land in question to third party except the plaintiffs.

2. Special Civil Suit no.176 of 1991 was partly allowed and the plaintiffs were declared entitled to recover an amount of Rs.1,66,102/- from the defendants together with interest while Regular Civil Suit no.399 of 1990 was ordered to be dismissed with cost. Being aggrieved by the impugned judgment to the extent of the dismissal of the Special Civil Suit no.176 of 1991, the appellants-original plaintiffs have preferred the captioned appeal. For the sake of convenience, the parties herein are referred to as per their status in the Civil Suit.

3. Pertinently, the captioned appeal is filed challenging the judgment to the extent to which the Special Civil Suit no. 176 of 1991 is dismissed; however, no appeal is preferred against the dismissal of Regular Civil Suit no. 399 of 1990. In view of the above, preliminary objections are raised as regard maintainability of the captioned appeal by and on behalf of the original defendants.

Re: Submissions and counter submissions on Preliminary Objections.

4. Mr.Mehul Shah, learned Senior Counsel, assisted by Mr.Apurva Kapadia, learned Advocate submitted that the plaintiffs instituted the Regular Civil Suit no.399 of 1990 seeking injunction against the defendants on apprehension that the defendants were likely to dispose of the lands in question defeating their claim under the agreement to sell. Subsequently, the plaintiffs instituted the Civil Suit against the defendants seeking specific performance of the agreement to sell. Both the Civil Suit and the Regular Civil Suit no.399 of 1990 were tried together and two sets of issues were formulated. In Civil Suit, issue no. 3 was regarding readiness and willingness of the plaintiffs to pay the remaining amount to the defendants as per the terms and conditions of the agreement to sell. While issue no. 4 was whether the plaintiffs prove that the defendants had failed to comply with the terms and conditions of the agreement to sell? Issue no. 1, in Regular Civil Suit no. 399 of 1990 was whether the plaintiffs prove that the defendants have committed the breach of the terms of the agreement to sell?

4.1 It is next submitted that as the issues were decided together and evidence being common for all the issues, common findings are rendered. While deciding the issues, the learned Judge has in paragraph 23 concluded that the plaintiffs have committed the breach of the agreement to sell and not the defendants. In paragraph 24, while dealing with the aspect of readiness and willingness, it is observed that the plaintiffs have neither paid the remaining amount nor have they performed their part of the contract. Observing thus, issue nos. 3 and 4 of the Civil Suit and issue no. 1 of the Regular Civil Suit no. 399 of 1990 were decided together and in negative. Resultantly, the Civil Suit is partly allowed while the Regular Civil Suit no. 399 of 1990 is dismissed but, is not subject matter of challenge and has attained finality. It is submitted that on the basis of the findings namely breach committed by the plaintiffs, t