IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 498 OF 2008 WITH CIVIL APPLICATION NO. 1203 OF 2008. Bapu Nathu Borate ...... ...... ...... Appellant V/s Dadaso Dinkarrao Jagdale ...... ...... ...... Respondent. Mr.Uday P. Warunjikar, Adv. For the appellant. Mr.Vishwanath S. Talkute, Adv. For the respondent. CORAM: R.V. MORE, J. 11th DECEMBER, 2008. PC: Heard Mr.Warunjikar, learned advocate for the appellant and Mr.Talkute, learned advocate for the respondent. The appellant is original defendant. The respondent-plaintiff filed suit for specific performance of contract of re-conveyance. The suit was dismissed by the trial Court. The respondent-plaintiff challenged the trial court's decree before the lower appellate court and by the impugned judgment and decree lower appellate court allowed the respondent-plaintiff's appeal. Consequently suit came to be decreed. There is no dispute that father of the respondent-plaintiff executed sale deed in favour of the appellant-defendant on 9.2.68. There is also no dispute that on the same day appellant-defendant executed agreement of re-conveyance at Ex.36. Appellant-Defendant 1 was to re-convey suit property to respondent-plaintiff on payment of Rs.14,000/- within a period of 20 years from the date of the sale deed. Suit was filed in the year 1981. The appellant-defendant neither disputed execution of the original sale deed nor re-conveyance deed at Ex.36. It was his defense that on 9.5.75 respondent-plaintiff executed an agreement for consideration of Rs.10,000/- and under this agreement he waived his right to re-convey the suit property. In the above facts and circumstances the crucial question which deserves consideration is whether the appellant-defendant prove execution of agreement dated 9.5.75. The lower appellate court considered this aspect on the basis of Apex Court judgment reported in the case of Raghunath v/s Kedarnath, AIR 1969 SC 1316 and concluded that the document dated 9.5.75 requires compulsory registration under the provisions of section 17(1)(b) of the Registration Act and since this document is not registered same is inadmissible in execution. At the same time lower appellate court gave finding that the respondent- plaintiff is ready and willing to perform his part of contract so far as re-conveyance agreement at Ex.36 is concerned. In view of aforesaid finding the lower appellate court decreed the respondent-plaintiff's suit. 2. Mr.Warunjikar, learned advocate for the appellant submitted that in para 23 the finding recorded by the lower appellate court that the alleged transaction dated 9.2.68 is not a transaction of sale and it was for the security of loan. On the basis of these findings given in 2 para 23 he submitted that the lower appellate court recorded contrary finding and therefore this second appeal deserves to be admitted. I do not find merit in this submission in as much as admittedly the father of the respondent-plaintiff sold out the suit property to defendant on 19.2.1968. The document at Ex.36 i.e. re-conveyance deed is also admitted by both the parties. The lower appellate court also in para 14 of its judgment has recorded the finding to that effect. In my opinion, having recorded the finding that the sale deed was executed by respondent-plaintiff's father in favour of the apellant- defendant the finding that the sale deed was for security of loan should not have been recorded. However in my considered view on this ground alone no interference is called for in second appeal. The lower appellate court has correctly found that the document dated 9.5.75 is inadmissible and therefore the appellant-defendant cannot rely upon the same. So far as document at Ex.36 i.e. re-conveyance deed is concerned the same is admitted by the appellant-defendant. Positive finding of fact is also recorded by the lower appellate court about readiness and willingness on the part of respondent-plaintiff. In that view of the matter I find no merit. Second appeal stands dismissed. In view of disposal of second appeal civil application No.1203/08 does not survive. 11.12.08 (R.V. MORE, J.) 3