1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.395 OF 2003 WITH CIVIL APPLICATION NO.4165 OF 2003. Mehrunisabegum s/o Wahabmiya Deshmukh - APPELLANT VERSUS Salamatkhan s/o Ajimkhan Pathan died, through L.Rs. - RESPONDENTS ***** Mr.SS Choudhari,Advocate for Appellant; Mr.Mujtaba G.Mustafa & MC Syed, for respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 15th March, 2010. PER COURT : 1) Heard both the counsel extensively. 2) The concurrent finding recorded against the plaintiff is questioned, being dissatisfied with the same on the grounds – a) that the evidence of virtually 13 witnesses is ignored; b)Points for determination are not correctly 2 formulated, even though mandated under Order 41 Rule 31 of CPC; c) The vendor/purchaser resides at distinct place in Washim while the properties are at different places for which he has entered into a sale; and d) Exhibit-55 recites, receipt of Rs.10,000/- prior to sale-deed, however, no agreement of sale or no money receipt for Rs. 10,000/-. 3) The plaintiff canvassed that she is a pardanshin lady and the sale deed was a loan for having received Rs.30,000/-, the sale-deed recites receipt of Rs.40,000/-. This contention is negated and completely defused by the plaintiff when she says, she has read the sale- deed before singing and executing the same. Her husband was present at the time of execution of the sale-deed, the brother-in-law (PW.13) also supports about execution of the sale-deed in the manner the defendant has contemplated. 4) The learned Appellate Court has 3 discussed worth of the several witnesses examined by the plaintiff to assert that the defendant is a settled money-lender, illegally entering into such activities. The appreciation carried by both the courts, on failure of evidence, does not require any questioning. 5) On the point of non-compliance of order 41 Rule 31 CPC, indeed, learned Appellate Court has framed the points for determination. The entire discussion indicate, the learned Judge was conscious of the evidence and the answers expected of him. There was no situation of confusion or any mayhem in the mind of the learned Appellate Court while adjudicating the controversy. The order of the first Appellate court also justifiably and in legal frame dissected the evidence and the document of sale (Exhibit-55). 6) The contention about the owner/plaintiff to be in possession has also been discussed by 4 the learned first Appellate Court, pointing that the defendant/purchaser was ousted from the property based on exparte ad interim injunction. Under the law, sale-deed (Exhibit-55) reciting parting of possession will naturally evince that such possession was rendered to the purchaser. The subsequent events that the revenue authorities need not be commented to, as due care can be taken by the respective parties. 7) No merit in the Second Appeal. No substantial question of law could be seen to be formulated, Second Appeal with CA dismissed. The order is stayed for a period of three months. (K.U.CHANDIWAL) JUDGE bdv/sa395.03