1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Second Appeal No.115 of 2009. Madhukar S/o Chindhuji Tekale. v Krushna S/o Bapuraoji Barade & one another. Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri M. L. Somalwar, Advocate for the appellant. Shri N. A. Vyawhare, Advocate for Respondent No.1. Shri S. D. Molke, Advocate for Respondent no.2. Coram : A.H. Joshi, J. Dated : 19th June, 2009. 1. This is a second appeal by unsuccessful defendant no.2. 2. The story and admitted facts on the part of the Defendant No.2 present appellant are as follows:- (a) The agreement of sale is said to be dated 24-08-1995 is prior to one relied upon by plaintiff. (b) Date of purchase and date of suit are same. (c) It is seen that the plaintiff has paid an earnest money of Rs.5000/- against the agreed amount of Rs. 50,000/-. (d) The defendant no.2 claims to be in possession of the property on the basis of 2 the agreement of sale. (e) Admittedly, notice of lispendence is not given. 3. The plea of the defendant no.2 is that he was a bona fide purchaser without notice of agreement of sale with the plaintiff. 4. Both the Courts below did not find favour that the story of the defendant no.2. 5. The question as to whether the defendant no. 2 s agreement of sale is prior is a question of fact and governed by concurrent finding. 6. In the appeal memo so also during oral submissions said finding of fact is not shown rendered without taking into account and consideration in piece of evidence. 7. On the other hand, the appellant  defendant no.2 has not been able to demonstrate as to how on payment of meager amount of earnest money i.e. about 10% of the agreed consideration i.e. RS.5000/- only how could he enjoy the possession of the suit property 3 for long 3 years. 8. The defendant no.2 is also not in a position to demonstrate as to how his story of possession delivered at the time of agreement of sale has gone unrecorded in 7/12 Extracts. 9. In these premises, the substantial questions of law, so claimed to be in Grounds No.2 to 6 do not arise in the case at all. 10. The appeal has no merit and is dismissed. JUDGE /Muley/