JUDGMENT:- Challenge in this appeal is to judgment rendered by learned Additional District Judge. Ahmednagar, in an appeal (R.C.A. No.26811985) whereby and where under judgment and decree rendered by learned Civil Judge (J.D.). Shevgaon, in suit (R.C.S. No. 16/1979) came to be reversed. 2. The suit was for specific performance of agreement of sale in respect of agricultural field bearing Gat No.129. Appellant Parashram is the original plaintiff. There is no dispute about the fact that the suit field was owned by Shaikh Rajmohamad and original defendants No.4 to 6. They executed two (2) registered agreements of sale. on 23rd July. 1975 and 11th September, 1975. By first agreement of sale dated 23rd July. 1975, they agreed to alienate 4 hectors 93 Rs land out of Gat No.129 in favour of the appellant for consideration of Rs.7.200/-. Along with right to draw water. They received an amount of Rs. 5.000/- by way of earnest at the material time as per recitals of the said agreement. By the second agreement of sale, dated 11th September 1975, they agreed to alienate remaining 2 hectors 50 Rs. land out of field Gat No. 129, in favour of the appellant. The agreed price was said to be Rs.5,000/- out of which an amount of Rs. 500/- was paid by way of earnest. 3. The appellant's case before the Trial Court was that he was inducted into possession of the above referred parcels of the lands at the time of each of the agreement of sale. The deceased - Shaikh Rajmohamad executed possession receipts in his favour at the time of both the transactions. It was agreed that remaining consideration of Rs.3.934/- would be paid by him at the time of execution of the sale-deed. He was ready and willing to perform his part of the agreement of sale. It was agreed that they would incur equal expenditure for registration of the sale-deed. Somewhere in the month of March/April, 1978, said Rajmohamad died. The original defendants No.1 to 3 are the legal representatives of deceased Rajmohamad, He requested them and other defendants to execute the sale-deed. He had called them to attend execution of the sale deed on 12th June, 1978. However, they did not comply his request due to instigation of some villagers. Consequently, he filed suit for specific performance of the agreements of sale. He had called them to attend execution of the sale deed on 12th June, 1978. However, they did not comply his request due to instigation of some villagers. Consequently, he filed suit for specific performance of the agreements of sale. 4, Original defendant No.1 resisted the suit by filing her written statement (Exh39). She denied the truth into the averments made by the appellant. She contended that original defendants No.4 to 6 are unconcerned with the suit fields. She denied that original defendants No.4 and 5 are brothers of deceased Rajmohamad. She denied execution of the agreements of sale by deceased Rajmohamad. She also denied the execution of the receipts of possession (Kabje-Pawti) purportedly executed by deceased Ramohamad in favour of the appellant. She asserted that suit was bad for misjoinder of causes of action. Original defendant No.3 followed the same line of defence. 5. The suit proceeded exparte against original defendant No.4. 6. According to original defendant No.5, the original defendant No.4 - Shaikh Subhedar is a person of criminal tendencies. According to him, defendant No.4 - Shaikh Subhedar obtained signatures of deceased Rajmohamad and himself by use of force. He further asserted that the consideration amount shown in the agreements of sale is quite inadequate. He further alleged that he was ready to refund the amount to the appellant in order to get back the suit field. Similarly, original defendant No.6 resisted the suit on the ground that original defendant No.4 had forced deceased Rajmohamad to sign the agreements. 7. The original defendants No.4 and 5 are said to be brothers of deceased Rajmohamad whereas original defendant No.6 Umraobee was his mother. 8. The parties went to trial on issues struck below Exh-42. They adduced oral and documentary evidence in support of the rival contentions. On merits, the Trial Court held that execution of both the agreements of sale were duly proved by the appellant (plaintiff). The Trial Court also came to conclusion that suit was not liable to be dismissed due to misjoinder of causes of action. The Trial Court held that plea of duress and fraud played on Rajmohamad and contesting defendants was without substance. Nor it was proved that the transactions were of unconscionable nature. Consequently, the suit was decreed. The decree for specific performance of the agreements in question was challenged before the first Appellate Court. The Trial Court held that plea of duress and fraud played on Rajmohamad and contesting defendants was without substance. Nor it was proved that the transactions were of unconscionable nature. Consequently, the suit was decreed. The decree for specific performance of the agreements in question was challenged before the first Appellate Court. The first Appellate Court held that the appellant failed to prove his readiness and willingness to perform his part of the agreements. The first Appellate Court further held the appellant was not entitled to claim discretionary relief of specific performance in view of the attending circumstances. The appeal was, therefore, allowed and the decree for refund of earnest amount alongwith interest at rate of 6 per cent from date of suit came to be substituted. 9. This second appeal was admitted by the then Hon'ble Judge treating grounds No.12 to 15 of the appeal memo as substantial questions of law. They are reproduced as follows: (i) Whether the Lower Court erred in exercising the discretion in favour of the defendants? (ii) Whether the Lower Court erred in interpreting the scope of Section 20 of the Specific Relief Act, 1963 ? (iii) Whether the Lower Court erred in setting aside the finding of fact for using discretion in favour of plaintiff by the Trial Court and substituting its discretion in favour of the defendants in Appellate jurisdiction? (iv) Whether the discretion of the Lower Court is guided by judicial principles? 10. Mr. Hon, would submit that the first Appellate Court committed patent error while reversing the decree for specific performance of the agreements on basis of surmises. He would submit that though pleadings of the appellant clearly show that he was ready and willing to perform his part of the agreements, yet, the first Appellate Court wrongly stated that there was no such pleading. He contended that the discretion exercised by the Trial Court could not have been lightly interfered with by the first Appellate Court. He argued that the first Appellate Court committed perversity by assuming that there was possibility of the transactions being that of loan though it was not of the defendant's case. He would submit that the impugned judgment does not go in to close quarters of the reasons recorded by the Trial Court. He urged to set aside the impugned judgment and order. Per contra, Mr. Bade-Patil, would support the impugned judgment. He would submit that the impugned judgment does not go in to close quarters of the reasons recorded by the Trial Court. He urged to set aside the impugned judgment and order. Per contra, Mr. Bade-Patil, would support the impugned judgment. He would submit that delivery of possession in favour of the appellant is not proved and there was no reason to execute separate receipts of possession. He contended that the agreements of sale gave unfair advantage to the appellant over the contesting defendants and, therefore, the impugned judgment is quite sustainable, 11. From evidence of the parties, it may be gathered that admittedly, deceased Rajmohamad, his brothers and mother were owners of the suit field. There is no reason to believe that deceased Rajmohamad was forced to sign the agreements of sale at instance of original defendant No.4 Shaikh Subhedar. There is nothing on record to show that deceased Rajmohamad was under duress as alleged by the defendants. 12. The appellants duly proved execution of the registered agreements of sale dated 23rd July, 1975 (Exh-78) and 1lth September, 1975 (Exh-80), The appellant alleged that deceased Rajmohamad and defendants No.4 to 6 jointly owned the field Gat No.129 as tenants-in-common. The agreement of sale dated 23rdJuly, 1975 (Exb78) is executed by deceased Rajmohamad and defendants No.4 to 6 together. The another agreement of sale (Exh-80) is executed by original defendant No.4 Shaikh Subhedar and is attested by deceased Rajmohamad alongwith defendant No,5 - Shaikh Shamshuddin. Though it was asserted by the defendants No.1 to 3 that deceased Rajmohamad was the exclusive owner of the suit field and that defendant Nos.5 and 6 were not his brothers, yet such contention has been negatived by both the Courts below. Copy of mutation register (Exh-20) reveals that after death of Mohiuddin in 1950, names of his three (3) sons including deceased Rajmohamad were recorded. Original defendant No. 6 Umraobee was shown as their guardian. The said Mutation Entry No.605 would find corroboration from oral evidence of the defendants No,5 and 6. 13. The appellant adduced oral and documentary evidence in support of his case. Original defendant No. 6 Umraobee was shown as their guardian. The said Mutation Entry No.605 would find corroboration from oral evidence of the defendants No,5 and 6. 13. The appellant adduced oral and documentary evidence in support of his case. He examined PW-2 Ramchandra in order to prove the agreement of sale dated 23rd July, 1975, His version shows that in pursuance to the agreement of sale, earnest amount of Rs.4,000/- was paid by the appellant He states that deceased Rajmohamad and his brothers agreed to alienate six (6) acres land at rate of Rs,I,200/- per acre at the relevant time. He states that the major part of the field from northern side is of poor quality. The version of PW Anant corroborates execution of the agreement of sale dated 11th September, 1975 (Exh-80). He is scribe of the said document. The version of PW -6 Baban corroborates case of the appellant that the entire land was previously with him by way of mortgage with conditional sale and it was redeemed lateron by Rajmohamad and his brothers. 14. The versions of DW Shamsoddin reveals that deceased Rajmohamad was his brother. He states that deceased Rajmohamad was partially blind by one of the eyes. He states that original defendant No.4 made the transactions about the suit field. He had taken them to office of the Sub-Registrar and had obtained their signatures under threat. This is the only vague statement. He admits his signature on the agreement styled as 'sathe-khat' (Exh80). Indeed, there is hardly any evidence to believe that original defendant No.4 - Shaikh Subhedar obtained signatures of deceased Rajmohamad and his brothers under duress at both the times when the agreements of sale were executed in favour of the appellant. The version of DW5 Umraobi reveals that deceased Rajmohamad was able to see with one of the eyes, but was blind by other eye. She states that original defendant No.4 Shaikb Subhedar was addicted to liquor and indulged in womanizing. She does not say that he obtained their signatures on the agreements of sale by exerting any force, 15. It is not necessary to elaborately discuss evidence of the parties. It suffices to say that the findings of the Trial Court that both the agreements of sale dated 23rd July, 1975 and 11th September. 1975 (Exh-78 and Exh80) have been proved, is confirmed by the first Appellate Court. It is not necessary to elaborately discuss evidence of the parties. It suffices to say that the findings of the Trial Court that both the agreements of sale dated 23rd July, 1975 and 11th September. 1975 (Exh-78 and Exh80) have been proved, is confirmed by the first Appellate Court. It is also proved that the defendants No. 5 and 6 could not prove that the agreements were obtained under duress and per force exercised by original defendant No.4 - Shaikh Subhedar. 16. The material question to be determined is whether the first Appellate Court committed patent error while refusing relief of specific performance of the agreements. In other words, it will have to be seen as to whether the first Appellate Court was justified in interfering with the discretion used by the Trial Court. The Trial Court granted decree for specific performance of the agreements on basis of findings of facts. The Trial Court exercised its judicial discretion available under section 20 of the Specific Relief Act. 17. The first Appellate Court observed that deceased Rajmohammad was blind and his mother is handicapped. This is one of the reasons which weighed with the first Appellate Court while interfering with the discretion used by the Trial Court. As stated before. versions of original defendants No.5 and 6 go to show that deceased Rajmohamad was not totally blind. He was able to see through one eye. There is also no substantial ground to infer that his mother or his widow are handicapped persons. The first Appellate Court gave much importance to discrepancies in the oral evidence of the appellant and his witnesses as regards the place where the agreement was settled. The first Appellate Court observed that separate contemporaneous possession receipts (Exh- 79 and Exh-81) dated 11th September. 1975 and 23rd July. 1975 would show that possession of the parcels of the field were simultaneously delivered on the same day of the agreements but there is no explanation as to why such fact was not mentioned in the respective agreements i.e. ‘sathe-khats’. The first Appellate Court inferred that in the agreements the factum of delivery of possession was not mentioned in order to avoid registration of the documents. 18. The appellant asserted that he was put in possession of the two (2) parcels of the suit field in pursuance to the agreements of sale. The first Appellate Court inferred that in the agreements the factum of delivery of possession was not mentioned in order to avoid registration of the documents. 18. The appellant asserted that he was put in possession of the two (2) parcels of the suit field in pursuance to the agreements of sale. There is no substantial reason to discard the possession receipts (Exh-79 and Exh-81). It' cannot be overlooked that at times the parties do not want registration of the sale transactions and in order to save the cost such contemporaneous documents are brought into existence. However it could not be the ground to disbelieve the fact regarding delivery of possession to the appellant. The first Appellate Court observed that deceased Rajmohamad and defendant Nos.4 to 6 were not likely to be benefited immediately at time of execution of the documents. In fact, such an issue is outside the realm of the scope of the suit. No issue about legal necessity was framed and it could not be the issue because the respondents are governed by Mahommedan Law. Even so, the appellant produced on record transaction between him and PW Baban. It appears that deceased Rajmohamad and his brothers got redeemed the land on same day on making payment ofRs.4,500/- to said Baban as per saledeed (Exh-106). This is a taletelling circumstance. It would be explicit that they desired to get back the family land and alienate a part of it. 19. The learned Additional District Judge was required to consider the evidence on record and the relevant issues involved in the matter. Apparantly, he was swayed away by certain submissions made by learned advocate of the respondents. He observed: '" .... I am told at the bar by the learned advocate for the appellants that real nature of the transaction in between the parties was money lending transaction. It is further urged that deceased Rajmohamad and his brothers have been so poor that they often used to give possession of the land for purpose of raising some amount by way of loan. They used to get their land redeemed by repaying loan amount. Possibility of such transaction entered into by the parties concerned vide Exh. 106.80,76, etc. may or may not be there, but this is one of the strongest circumstances on record to indicate that discretion shall not be used in favour of the plaintiff." 20. They used to get their land redeemed by repaying loan amount. Possibility of such transaction entered into by the parties concerned vide Exh. 106.80,76, etc. may or may not be there, but this is one of the strongest circumstances on record to indicate that discretion shall not be used in favour of the plaintiff." 20. At this juncture, it may be stated that in the Trial Court, there was absolutely no whisper made about the suit transactions being outcome of loan agreements. It was nobody's case that deceased Rajmohamad and defendants No.4 to 6 had obtained loan from the appellant. Inspite of the absence of any such plea. the first Appellate Court was unnecessarily swayed away by submissions of the learned advocate and held that it was "strongest circumstance" to indicate that discretion shall not be used in favour of the defendant (appellant). The learned Additional District Judge seems to have made out a new case for the respondents which was never put forth in the Trial Court. This is obviously impermissible and not expected from the Appellate Court. The first Appellate Court came to the conclusion that in order to avoid future litigation, it was very much essential that decree of specific performance should be avoided. This kind of reason does not come within ambit of circumstances under which decree of specific performance can be refused under section 20 of the Specific Relief Act. 21. While interfering with the discretion of the Trial Court, one more reason given by the first Appellate Court is that there are discrepancies in the oral evidence of the appellant and his witnesses. The learned Additional District Judge held that the manner of payment made to PW Baban is discrepant. The learned Additional District Judge states that the material discrepancy on record in this context would not result in nullifying the contents of the agreements of sale but will have definite consequential effect to hold that it was not a fit case in which decree of specific performance could be passed. The reasoning of the first Appellate Court is quite queer and unacceptable. The issue regarding time and manner of payment made to PW Baban by deceased Rajmohamad and others is of incidental nature. Such evidence was adduced on record only to show that the family of the defendants was under financial pressure. The reasoning of the first Appellate Court is quite queer and unacceptable. The issue regarding time and manner of payment made to PW Baban by deceased Rajmohamad and others is of incidental nature. Such evidence was adduced on record only to show that the family of the defendants was under financial pressure. That was put forth to justify the probability of their common decision to alienate the part of their property so as to regain ownership of half of the land. 22. The discretion used by the Trial court could not have been lightly interfered with by the first Appellate Court and particularly on the premises stated in the impugned judgment. The contesting defendants/respondents did not demonstrate before Trial Court as to how the appellant would get unfair advantage over the respondents if decree of specific performance is granted in his favour. No such issue was framed. What they pleaded is altogether different from what was put forth before the first Appellate Court. The burden of proof would be on the respondents to prove that the appellant would get unfair advantage over them if the decree of specific performance is granted. They were required to establish such a fact. In absence of appropriate proof in this behalf, the Trial Court rightly exercised the discretion and granted relief of specific performance of the sale. In case of "Sa kina M. Mulla Vs. Sulphur Refinery" 2000(1) Bom.C.R. 449 ", this Court observed: " ..... Perusal of provisions of section 20 of the Specific Relief Act shows that the Court can refuse to exercise its discretion in favour of granting decree of specific performance, if it comes to the conclusion that the plaintiff would get unfair advantage over the defendant by granting specific performance. But for that purpose also the defendant would have to establish this fact." 23. It is well settled that the relief of specific performance is an equitable relief. The discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by the Court of Appeal. The decree of specific performance granted by the Trial Court cannot be ordinarily interfered with by the first Appellate Court. Where the Trial Court has exercised its discretion in one way, the Appellate Court will not interfere with it unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The decree of specific performance granted by the Trial Court cannot be ordinarily interfered with by the first Appellate Court. Where the Trial Court has exercised its discretion in one way, the Appellate Court will not interfere with it unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The learned Additional District Judge could not demonstrate perversity in the discretion used by the Trial Court. On the other hand, as stated before, though it was nobody's case, yet, the learned Additional District Judge inferred that the agreements of sale could be reflective of money lending transactions and, therefore, discretion could not be used in favour of the appellant. 24. A Single bench of this Court (Sathe, J.) in "Hariba Babu Babar and another Vs, Appasaheb Dadu Nagargoje, 2007(5) Mh.L.J. 260 ", held that merely because the Appellate Court feels that different view can be taken in the matter, discretion exercised by the Trial Court ought not to be interfered with. It is observed that ordinarily it would not be open to the Appellate Court to substitute its own discretion for that of the Trial Judge unless it appears to the Appellate Court that in exercising the discretion, the Trial Court has acted unreasonably or capriciously or has ignored relevant facts. The Trial Court exercised its discretion in the present case having regard to the attending circumstances. The respondents did not establish the defence of alleged duress by the uncontesting defendant No.4 - Shaikh Subhedar. There is nothing on record to infer that the respondents could not foresee the implications of the agreements of sale. In the absence of their pleadings and proof so as to bring their case within the Exception enumerated in sub-clause (2) of Section 20 of the Specific Relief Act, the first Appellate Court ought not to have interfered with the discretion exercised by the Trial Court while granting decree of specific performance. The Apex Court in "Santosh Hazari Vs, Purushottam Tiwari deceased by L.Rs." 2001(2) Mh.L.J, 786, held: "While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the Judgment. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the Judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with me finding of fact." 25. Tested on the touchstone of well settled principles and in view of foregoing discussion. I find that the impugned judgment is unsustainable. The first Appellate Court committed patent error while substituting its own discretion in place of the discretion exercised by the Trial Court. It goes without saying that the impugned judgment is unsustainable and liable to be set aside. 26. In the result the appeal is allowed. The impugned judgment is set aside and that of the trial Court is confirmed. No costs. Appeal allowed.