1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 122 OF 1990 Dadabhau s/o Bhanaji - deceased, through legal representatives:- 1. Raubai w/o Dadabhau Ghayatad, age 60 years, occup. household, 2. Chatrabhuj s/o Dadabhau Ghayatad, age 30 years, 3. Pralhad s/o Dadabhau Ghayatad, age 25 years, 4. Subhash s/o Dadabhau Ghayatad age 21 years, 5. Sow. Sulbai w/o Laxman Tupe age 34 years, occup.house-hold, r/o Pithori Shirasgaon. .. Appellants/ Nos. 1 to 4 r/of Rajegaon, Plaintiffs Taluka Ambad, Dist. Jalna. versus 1. Abdul Rashid s/o Raj Mohammed, age 35 years, 2 2. Mukhtiyar s/o Raj Mohammed occup. agri. Both r/of Ghansawangi, Taluka Ambad. 3. Bhikabhau s/o Tukaram Turse, age 30 years, occup. Agril. and labourer, r/o Rajegaon, District Jalna. 4. Saheba s/o Mahadu Bethe age 30 years, occup. Agril. and labrouer, r/o Rajegaon, .. Respondents/ District Jalna. Defendants. ----- Shri Y.M. Khan, Advocate, holding for Shri K.G. Khader, Advocate for the appellant. Shri P.V. Mandlik, Senior Counsel for Respondent No.1. ----- Coram : P. R. Borkar, J. Date : 22.03.2010 ORAL JUDGMENT 01. Heard Shri Y.M. Khan, Advocate, holding for Shri K.G. Khader, Advocate for the appellant and Shri P.V. Mandlik, Senior Counsel for Respondent No.1. Appeal is dismissed as against Respondent Nos. 2 and 3 who are no more and, therefore, now this appeal survives between appellant Nos. 4 and 5 on one hand and Respondent Nos. 1 and 4 on the other. 3 02. At the time of admission of this second appeal on 29.11.1990, only substantial question of law raised was interpretation and appreciation of the document at Exh. 46. 03. Facts giving rise to this second appeal are that the original plaintiff is Dadabhau Bhanaji. Present appellants are his legal representatives. Dadabhau filed suit bearing R.C.S. No.74 of 1974 in the court of Civil Judge (Jr.Dn.) Ambad for injunction simplicitor against present Respondents in respect of the land bearing Survey No.22 to the extent of 3 acr4es 17 gunthas out of total area of 26 acres 35 gunthas situated at village Rajegaon, District Ambad. The said survey No. 22 was subsequently given Gat No. 41. According to the plaintiff Dadabhau, the said property belonged to original Defendant No. 3 Bhikabhau Tukaram Tarse with whom he entered into an agreement for sale on 21.9.1973. Price agreed was Rs. 3,000/=. Plaintiff paid Rs.2500 to Defendant No.3. Defendant No.3 executed sale deed in favour of plaintiff on 25.3.1974 and since then the plaintiff has become owner and possessor of the land. In spite of that, the defendants were unnecessarily obstructing his possession and hence the suit for injunction. 4 04. It is Defendant No.1 Abdul Rashid who was contesting defendant. Defendant No.2 is his brother and Defendant No. 4 was his servant. Defence of Defendant Nos. 1 and 2 is that Defendant No. 3 had inducted Defendant No.1 as tenant in respect of suit land on crops share basis by executing deed to that effect on 16.7.1973. In the same year, Defendant No. 3 agreed to sell land to Defendant No.1. The price agreed was Rs.1500/= out of which Rs.1000/= were paid by Defendant No.1 to Defendant No. 3 on the same day. On 19.11.1973, Defendant No. 3 executed a registered sale-deed in favour of Defendant No.1. All along Defendant No. 1 was in possession of the property since the date of purchase. However, on the basis of false documents prepared by plaintiff regarding his possession, false suit is filed against the defendants. 05. The trial court, so also the first appellate court came to the conclusion that the defence of Defendant Nos. 1 and 2 is true; plaintiff was not in possession of the suit property. The suit by plaintiff and first appeal by his legal representatives were, therefore, dismissed. As against same this second appeal is filed. 5 06. Exhibit 46, regarding which substantial question of law is raised is the agreement for sale dated 21.9.1973 executed by original Defendant No.3 Bhikabhau Turse in favour of original plaintiff Dadabhau Ghayatad. It is mentioned therein that the suit land was agreed to be sold for Rs.3,000/= and on that date Rs.2,500/= were paid and the balance of Rs. 500/= was agreed to be paid at the time of execution of the sale deed. 07. While discussing evidence, the trial court and the first appellate court have noted that the agreement for sale in favour of the plaintiff was dated 21.9.1973 which was subsequent to Batai Patrak in favour of defendant No.1 which is dated 16.7.1973. It is also noted that the sale deed in favour of Defendant No.1 by Defendant No.3 was prior in point of time to the sale-deed executed in favour of the plaintiff. So, on the date on which Defendant No.3 executed sale-deed in favour of the Plaintiff, Defendant No.3 had no saleable right. It has come in the evidence of PW-2 Ambadas that he was knowing on the date of sale deed in favour of plaintiff that already sale-deed was executed by Defendant No. 3 in favour of Defendant No.1. 6 08. The agreement for sale (Exh.46) was doubted as being not genuine on the ground that as per the evidence on record, the plaintiff stated that the talks regarding agreement for sale took place between him and defendant No.3 about 7 to 8 days before actual execution of the agreement (Isar Pawati). PW-2 Ambadas and PW-4Machindra, however, deposed that the said talk took place 2 to 4 days prior to execution of Isar Pawati. So, the talks about sale-deed took place 8 days before the agreement for sale was executed on 21.9.1973. In the circumstances, the question that arises is as to why the stamp paper on which the agreement was written was purchased as early as on 19.6.1973 when there were no talks regarding agreement for sale. Moreover, purchase of the stamp paper was made in the name of Defendant No.3 Bhikabhau three months before the transaction with the plaintiff. So, it was held by the trial court that the agreement for sale (Exh.46) might be ante-dated. Furthermore, Batai Patrak in favour of Defendant No.1 was executed by Defendant No.3 on 16.7.1973 which is prior to the said agreement for sale (Exh.46) in favour of Plaintiff which is dated 21.9.1973. 7 09. The plaintiff has also come out with a new case that he was cultivating suit land for 4 to 5 years prior to the execution of the agreement for sale. In my opinion, this being a suit for injunction simplicitor, the question of possession is important and therefore the genuineness of the agreement of sale is ancillary aspect which was taken into consideration while appreciating evidence regarding possession. 10. Shri P.V. Mandlik, learned Senior Counsel, for Respondent No.1 has produced a copy of sale deed dated 18.2.1994 executed by Chaturbhuj Dadabhau (appellant No.2 and legal heir of deceased plaintiff Dadabhau) in favour of one Dnyaneshwar Tarle in respect of the suit property. The said copy of the sale deed dated 18.2.1994 is taken on record and marked "X" for the purpose of identification. In any case, the plaintiff has failed to prove his possession and since concurrent findings of facts are recorded by the two courts, it cannot be said that there are adequate reasons to reappreciate evidence in the second appeal. 11. After having gone through the judgment of the trial court, so also of the first appellate court, 8 in my opinion, both the courts did not commit any error in dismissing plaintiff's suit for injunction. Hence, second appeal is dismissed. pnd/sa122.90 (P.R.BORKAR, J.)