1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 90/2006 (Dr.Abhaykumar Narayan Saktepar (Jain) VERSUS Vishnukumar Manikchand Kandi) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri Nitin Sambre, counsel for the appellant. Shri M.D. Samel, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 22, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff for recovery of an amount of Rs.1,07,000/-. According to the plaintiff, the plaintiff and the defendant were closely related and when defendant and his wife were suspended from the service by the management of the school, the defendant had borrowed certain amount from the plaintiff from time to time to meet the litigation expenses and also to maintain his family. According to the plaintiff, the amount borrowed was Rs.1,65,000/. On 08.01.1999, the defendant executed a Special Power of Attorney in favour of the plaintiff thereby permitting the plaintiff to sell his land and to adjust the consideration amount towards debt. On the same day i.e. on 08.01.1999, the 2 defendant executed a contract to pay an amount of Rs.1,65,000/- to the plaintiff. Subsequently, since the son of the plaintiff by name Dhananjay had offered to purchase the plot of land of the defendant for market value of Rs.58,000/-, the plaintiff executed a registered sale-deed on behalf of the defendant in favour of his son Dhananjay. It is pleaded by the plaintiff that from an amount of Rs.1,65,000/- advanced by him to the defendant, the consideration amount of the sale- deed i.e. Rs.58,000/- was liable to be adjusted and the defendant was, thus, liable to pay an amount of Rs.1,07,000/- to the plaintiff. The plaintiff, therefore, sought a decree for recovery of the amount due, with interest thereon. The defendant contested the suit by filing the written statement. He admitted that he executed a Special Power of Attorney in favour of the plaintiff on 08.01.1999 to sell his land. He, however, denied that he had executed a contract to repay the amount of Rs.1,65,000/- to the plaintiff on 08.01.1999. The defendant pleaded that he had agreed to sell the suit land to Dr. Sadanand by an agreement dated 03.06.1994 for a consideration of Rs.1,50,000/- and had also accepted an amount of Rs.25,000/- from Dr. Sadanand. The possession of the land was 3 delivered to Dr. Sadanand but, since Dr. Sadanand failed to pay the balance consideration, the defendant executed a Special Power of Attorney in favour of the plaintiff for selling the land to another party. A blank stamp paper signed by the defendant was misutilised by the plaintiff for the purpose of the present suit. The defendant pleaded that the land was worth Rupees Two Lacs at the relevant time but, a bogus sale-deed for an amount of Rs.58,000/- was executed by the plaintiff on behalf of the defendant in favour of his son. A civil suit was, therefore, filed by the defendant against the plaintiff. The defendant, therefore, sought for the dismissal of the suit. The trial Court decreed the suit of the plaintiff and held that the defendant was duty bound to pay the amount borrowed by him. The trial Court held that the plaintiff succeeded in proving that the contract dated 08.01.1999 was a genuine contract to repay the amount. The trial Court further held that the defendant was unsuccessful in proving that the agreement dated 08.01.1999 was false, forged and not binding on him. The first appellate Court reversed the findings recorded by the trial Court by allowing 4 the appeal filed by the defendant. The first appellate Court dismissed the suit of the plaintiff on the ground that the plaintiff had failed to establish the payment of Rs.1,65,000/- to the defendant and had further failed to establish that the defendant agreed to pay the same to the plaintiff by the agreement dated 08.01.999. The first appellate Court held that the agreement at Exh.37 appeared to be a false and fabricated document. The judgment in the first appeal is challenged in this appeal. I have perused both the judgments in detail. I have also perused the oral evidence of the plaintiff and specially some of the admissions of the plaintiff in his cross-examination. The trial Court had rendered the findings in favour of the plaintiff but, the first appellate Court, on a re- appreciation of the material evidence on record, reversed the findings. The first appellate Court, as a final fact finding Court, was entitled to take another view in the matter. The findings recorded by the first appellate Court are based on a proper re-appreciation of the material evidence on record, the admitted facts of the case and the attending circumstances which were discussed by the first appellate Court in detail. The findings cannot be said to be perverse in the facts and 5 circumstances of the case and on the basis of the evidence on record. Since the findings recorded by the first appellate Court are pure findings of facts, they do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE