1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.219/2010 Shantabai Haribhau Tayade & ors ..vs.. Wasudeo Baliram Sontakke =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri Abhay Sambre, advocate for the appellants Shri R.S. Kurekar, advocate for respondent C ORAM : SMT. VASANTI A NAIK,J. DATED : 16th June, 2010. Heard the learned counsel for the parties. The appellants are the original plaintiffs. A suit was filed by the plaintiffs for a declaration that the sale deed executed by the plaintiffs in favour of the defendant on 8.8.1997 was sham and bogus and was not a real sale transaction. According to the plaintiffs the defendant had advanced the amount of Rs.50,000/- to the plaintiff and the sale deed was got executed on 8.8.1997 as security for the loan advanced by the defendant to the plaintiffs. It is the case of the plaintiffs that the plaintiffs had repaid the amount of Rs.50,000/- to the defendant on 24.2.2000 by withdrawing the said amount from the bank on 23.2.2000. Since the defendant failed to re-convey the property to the plaintiff, the suit was instituted for the declaration. 2 The defendant denied the claim of the plaintiffs and also denied that the sale deed dated 8.8.1997 was a loan transaction and was not a sale transaction. The defendant specifically denied that he had received an amount of Rs.50,000/- on 24.2.2000. The defendant sought for the dismissal of the suit. The trial court on an appreciation of the evidence on record held that the plaintiff had proved that the sale deed dated 8.8.1997 was a nominal transaction and was executed for obtaining loan of Rs.50,000/- from the defendant. The trial court held that the plaintiffs proved that he had repaid the amount of Rs.50,000/- to the defendant with interest. The trial court therefore decreed the suit filed by the plaintiff for possession. On a re-appreciation of the evidence on record the first appellate court reversed the findings recorded by the trial court on the aforesaid issues. The first appellate court held that the plaintiff failed to prove that the sale deed in question was sham and nominal and was executed as security for the loan advanced to the plaintiffs. The first appellate court considered the evidence considered by the trial court and held for cogent and convincing reasons that the evidence of the plaintiff and also her two witnesses about the advancement of the loan and repayment of the loan amount of Rs.50000/- was liable to be discarded. The first appellate court held that 3 in case the plaintiff had repaid the amount of Rs.50000/- to the defendant on 24.2.2000, the plaintiff would have definitely secured some receipt / acknowledgment from the defendant for the repayment as the plaintiff was a literate lady and was serving as a teacher. In the absence of any documentary evidence on record of the repayment of the amount of Rs.50000/- with interest and in the absence of any cogent and convincing evidence in regard to the loan transaction and the repayment of the amount of Rs.50000/- with interest the first appellate court rightly held that the suit transaction was not a loan transaction and an amount of Rs.50000/- was not paid by the plaintiff to the defendant with interest. The findings recorded by the first appellate court are pure findings of facts based on a proper appreciation of the material on record. They do not give rise to any substantial question of law. The second appeal therefore, fails and is dismissed with no order as to costs. JUDGE SMP