MADHAV J. JAMDAR, J. DATE : 1 st MARCH, 2023 P.C.:

1. Heard Mr. Rokade, learned counsel appearing for the Appellant and Mr. Salunke, learned counsel appearing for the Respondent Nos. 1 and 2.

2. The Appellant is the Original Defendant No. 3 i.e. subsequent purchaser. The Respondent Nos.1 and 2 are the Original Plaintiff who agreed to purchase the suit land from the Respondent Nos. 2 and 3 and fled suit for the specifc performance. The Respondent Nos. 3 and 4 are the Original Defendant Nos. 1 and 2 i.e. Vendors. The Defendant No. 4 is the son of the Defendant Nos. 1 and 2 and the Defendant No. 3 i.e. subsequent purchaser is the daughter of the Defendant No. 4.

3. The Appellant by way of the present Second Appeal is challenging the legality and validity of the impugned Judgment and Decree dated 13 th August, 2004 passed in Special Civil Suit No. 553 of 1995 by learned 6 th Civil Judge, Senior Division, Pune and the Judgment and Decree dated 6 th October, 2022 passed by the Learned District Judge-6, Pune in Regular Civil Appeal No. 758 of 2012. The said Appeal was fled by the Original Defendant No. 3 i.e. the present Appellant.

4. Mr. Rokade, learned counsel appearing for the Appellant who is the Original Defendant No. 3 submitted that, following substantial questions of law are involved in the present Second Appeal.

i] Whether the courts could have granted the deree which has not been sought in the plaint?

ii] Whether the Decree of specifc performance regarding the suit property could have been granted in the absence of partition of suit property by metes and bounds?

5. Before considering the substantial questions of law raised by Mr. Rokade, learned counsel appearing for the Appellant, it is necessary to set out certain admitted factual position.

6. Admittedly, the Defendant Nos. 1 and 2 i.e. the present Respondent Nos. 3 and 4 i.e. Baburao Bala Teli and Parvatibai Baburao Teli executed the registered agreement of sale dated 14 th September, 1994 in favour of the Plaintiffs i.e. the present Respondent Nos. 1 and 2 with respect to the half share of the property bearing Gat No. 300 situate at Vadgaon Rasai, Tal. Shirur, Dist. Pune. Total area of Gat No. 300 is 4H 78R as well as additional area of Potkharaba of 35 Guntha. In the registered agreement, it is specifcally mentioned that 1/2 share of the Defendant No. 1 and 2 is 2H and 39R as well as Potkharaba area of 17.5R. Therefore, total land which has been purchased is 2H

56.5R.

7. It is also admitted position that, Defendant Nos. 1 and 2 have sold the suit property by executing registered sale deed dated 28 th February, 1995 in favour of Defendant No. 3. Admittedly, Defendant No. 4 is the son of Defendant Nos. 1 and 2 and Defendant No. 3 is the daughter of Defendant No. 4 i.e. grand daughter of Defendant Nos. 1 and 2. It is also admitted position that, the Regular Civil Suit No. 70 of 1992 was fled by Defendant Nos. 1 and 2 against Defendant No. 4 seeking the partition and the said suit was decreed on 30 th September, 1993 by which half share was allotted in favour of Defendant Nos. 1 and 2 and half share was allotted to Defendant No. 4. It is also admitted position that Darkhast for fnal decree proceeding are pending and the precept has been sent to the collector for partition of the property.

8. In these circumstances, the suit was fled by the present Respondent Nos. 1 and 2 seeking specifc performance and for a declaration that the said sale deed dated 28 th February, 1995 executed by Defendant Nos. 3 and 4 in favour of the Appellant i.e. Defendant No. 3 be declared as illegal and seeking possession from Defendant Nos. 1 and 2 after the same is received by Defendant Nos. 1 and 2.

9. It is signifcant to note that, all the Defendants fled common written statement and stand is taken that, the agreement of sale wa