1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.227 OF 2006 WITH CIVIL APPLICATION NO.472 OF 2006 Shri Bhau Anna Magdum (deceased) ..Appellants through Legal Heir V/s. Smt.Radhabai Yeshwant Jadhav ..Respondents & ors Mr.G.M.Savagave, Advocate, for the appellants Mr.Amit Shete i/b.Mr.Amit Borkar, Advocate, for respondent No.3(A) CORAM : C. L. PANGARKAR, J. DATE : 9TH FEBRUARY, 2010 P.C. . Heard the learned counsel for the parties. 2. This Appeal is preferred by the original defendant against the Judgment and Decree passed by the First Appellate Court whereby he decreed the Suit filed by the respondents. 2 3. The original respondents/plaintiffs filed Suit for Specific Performance of Contract alleging that the defendant had agreed to re-convey the field which he had purchased from the plaintiff. 4. The said Suit was resisted by the present appellant/original defendant on the ground that he had not at all executed any Agreement of re conveyance. 5. The learned Judge of the Trial Court as well as the First Appellate Court found that the transaction in Suit is not one of the mortgage by conditional sale. Since the term of re conveyance of property was not implied in the Sale Deed itself. These are two concurrent findings of fact which need not be disturbed and even the present appellant does not challenge that finding. 6. The learned counsel for the appellant 3 contends before me that it was an out and out sale and therefore, no question of re- conveyance arises. Further, he submits that a Decree for re conveyance should not have been passed. Both the Courts have merely held that transaction in Suit was one of sale. Only question which needs to be considered is that whether there was an Agreement of re conveyance. If the Written Statement of the defendant is seen, the defendant does not make in clear breath as to whether he has executed any document. He simply denies execution of another document. The learned Judge of the First Appellate Court has considered the document tendered by the plaintiff. The plaintiff has examined attesting witness, who had attested the Agreement of reconveyance in favour of the plaintiff, that Agreement of reconveyance has to be held to be proved. It cannot therefore be said that there was no Agreement of re-conveyance. Both the Courts below have rightly considered the evidence on 4 record and have rightly held that the transaction in a Suit was not mortgage by conditional sale. There is no perversity in findings recorded by the First Appellate Court. As a result, I do not find any substance in the Appeal. No substantial question of law is involved in this Appeal. The above Second Appeal is, therefore, dismissed. 7. In view of the dismissal of the above Second Appeal, Civil Application does not survive and same is accordingly disposed of. (C.L.PANGARKAR, J.)