1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 1 OF 2004 WITH CIVIL APPLICATION NO. 4 OF 2004 Shri Dhondu Laxman Sawardekar, ) since deceased by heirs: ) 1. Vishnu Dhondu Sawardekar ) Age: 60 years; occu: Retd. ) R/o a Dattadham Co-op. Society, Room ) No.A-1, Plot No.61, Central park, ) Nallasopara (East). ) 2. Balu Dhondu Sawardekar ) Age 58 yeas, Occ: Service, ) R/o. At Tania Classic, ) Building No.1, room No.9, Nallasopara ) (East) ) Also at: ) Aachole Goan Gala Nagar Rd., ) near pancham High School, Vasai, ) Taluka Vasai. ) 3. Nago Dhondu Sawardekar ) Age 56 years, Occu: Service, ) R/o. At 1/47, Sarkari Vasahat, ) Bandra (East), Mumbai 400 051. ) 4. Mrs. Suvarna Raghunath Kadam ) Age : 52 years, Occu: Housewife, ) R/o. Mukkam Mirjoli, Taluka: Chiplun, ) Dist. Ratnagiri. ) 5. Mrs. Shaila ShantaramAmbavkar ) Age 50 yrs, Occu: Housewife, ) 2 201, Swati Palace, Baboola Chuna Road, ) Stela, Vasai (West), Dist. Thane. ) 6. Sonu Dhondu Sawardekar ) Age 48 years, Occu: Service. ) R/o at; At & Post: Mirjoli, ) Tal: Chiplun, Dist Ratnagiri. ) 7. Ashok Dhondu Sawardekar ) Age: 46 years, occup: Service. ) Nagindas Pada, Nallasopara (East), ) Taluka Vasai,District: Thane. ). Heirs of Sole Appellant. Versus 1. Deepak Vasant @ yashwant Sawardekar ) Age adult, occu: Nil, A/p Mirjoli, Tal. ) Chiplun, ) 2. Ramesh Vasant Sawardekar ) Age Adult, Occ: service, A/p Peth, Tal. ) Chiplun, Dist.Ratnagiri. ) 3. Sunil Vasant @ Yashwant Sawardekar ) Age Adult Occ: Service, ) A/p Margtamhne,Tal: Guhagar, ) Dist. Ratnagiri. ) 4. Mrs. Vijayanta Sonya Palshetkar ) Age Adult, occu: Housewife, ) At/p Marg Tamhae,Tal: Guhagar, ) Dist. Ratnaigir. )..Respondents (Org.defendants) Mr. Madhav Jamdar,Advocate, for the appellant. CORAM: J.H.BHATIA,J. DATE: 24th July, 2009. 3 JUDGMENT. 1. Heard the learned counsel for the appellants. 2. This is Second Appeal filed by the legal heirs of the original plaintiff – Dhondu Laxman Sawardekar. The suit property originally belonged to one Vasant Sakharam Savardekar. The defendant Nos. 1 to 3 are the sons and deceased defendant No.4 was wife of said Vasant Savardekar. According to the plaintiff Dhondu, he had purchased the suit property for consideration of Rs. 10,000/- from Vasant Savardekar under a registered sale deed dated 11.3.1988 and he was put in possession of the said property. Entry was also taken in the Grampanchayat record. After death of Vasant Savardekar, his legal heirs i.e. the defendants began to create obstructions in the enjoyment of the suit property by the plaintiff. Therefore, he filed Regular Civil Suit No.25 of 1994 for perpetual injunction. The defendant denied that the property was ever sold by Vasant Savardedkar to the plaintiff and that the plaintiff was put in possession. The trial Court dismissed the suit and the plaintiff filed Regular Civil Appeal No.119 of 2003. That appeal also came to be dismissed. Hence, the Second Appeal. 3. On perusal of the record, it appears that the plaintiff himself was 4 not examined as a witness. Instead, his son Sonya was examined as a witness. He admitted that at the time of recording of evidence, his father i.e. the plaintiff was in a position to walk and talk though he was aged about 88 years. Therefore there was no valid reason not to examine the plaintiff himself. The evidence of P.W. 1 Sonya reveals that he was present at the time of presentation of the sale deed for registration, but he does not speak anything about the agreement, payment of consideration and execution of the sale deed by Vasant Sawardekar. No attesting witness was examined. Only scribe of the document was examined, but his evidence also shows that he was not personally knowing said Vasant Sawardekar. When the parties came to him, he asked the name of the present vendr who disclosed his name as Vasant. Accordingly, the document was scribed and the said person put his signature and thereafter document was presented for registration. He was also silent about the payment of consideration. In view of the nature of this evidence, it was impossible to come to conclusion that Vasant Sawardekar had executed the sale deed. On the basis of evidence of that witness, only it could be said that somebody had appeared, got the document scribed and had put his signature on the same, but it could not be said that the document was really scribed as per instructions of Vasant Sawardekar and that said Vasant had executed the document. 5 4. It is also material to note that original sale deed was not produced before the Court. Only certified copy of the same is produced on the ground that during the relevant period the original documents were with the Office of Registrar General of the Documents.Learned Counsel for the appellant contends that in such circumstances, secondary evidence of the original document could be given. Without entering into the controversy, even if it is presumed that the certified copy could be produced and proved, in the given circumstances, no evidence worth the name was produced to prove the contract, payment of consideration and execution of the document. In view of the above circumstances, it is difficult to find any fault with the concurrent finding of facts by both the Courts below. I do not find any question of law involved in the Appeal. 5. In the result, the Appeal stands dismissed. 6. As the Appeal itself is dismissed, C.A. No.4/2004 for injunction does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)