( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 184 OF 2010 WITH CIVIL APPLICATION NO. 3670 OF 2010 Shivraj s/o. Vishwanath Kumbhar .. Appellant Versus Babasaheb s/o. Dnyanoba Darphalkar and anr. .. Respondents Shri J.S. Gavane, Advocate for the appellant. Shri N.D. Kendre, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 18.06.2010 P.C. :- 1. Heard Adv. Shri J.S. Gavane for the appellant and Adv. Shri N.D. Kendre for the respondents. 2. This Second Appeal is directed against the judgment and decree passed by the Civil Judge, Junior Division, Ausa, in Regular Civil Suit No. 357 of 2003, decided on 18.12.2008, ( 2 ) whereby the suit filed by the present appellant/plaintiff was dismissed and counter-claim for possession filed by respondent No. 2 (defendant No.2) was allowed and the plaintiff/appellant was directed to hand over possession of the plot to respondent No.2. Said judgment and decree is further confirmed in appeal by the District Judge-1, Latur, in Regular Civil Appeal No. 65 of 2008, decided on 12.12.2009. As against the same this Second Appeal is filed. 3. The learned advocate for the appellant Shri Gavane argued before me that respondent No. 2 did not file any separate written statement. He also said that no opportunity was given to the plaintiff/appellant to file counter written statement on the counter-claim filed by respondent No.2 and thus there was prejudice. He also argued that no issue regarding the plaintiff/appellant being ready and willing to perform his part of the contract was framed and therefore this Second Appeal should be admitted and the matter may be remanded. 4. If we consider the judgment of the Trial Court and the First Appellate Court, the First Appellate Court has come ( 3 ) to the conclusion that no oral agreement between the plaintiff/ appellant and respondent No.1 for purchasing the suit plot was proved and therefore it does not appear that he has considered whether the plaintiff/appellant was ready and willing to perform his part of the contract. On the other hand, issue No.1 framed by the Trial Court is - Whether the plaintiff proved that he had purchased suit plot from respondent No.1 for Rs.7000/-. If we consider the plaint, there is no pleading that there was oral agreement of sale and as per the agreement for a particular consideration the suit plot was agreed to be purchased. No term of agreement within how much time the sale-deed was to be executed was mentioned. In-fact, if we consider para 5 of the plaint, it is mentioned therein that the transaction of sale was complete and that appears to be reason why the Trial Court framed issue No.1. It does not appear from the record that the there was any application for reformulating or correcting issue No.1. In any case, the First Appellate Court has considered if there was any oral agreement proved between the plaintiff/appellant and respondent No.1 and it has come to the conclusion that there was no such agreement. It is a finding of fact and after hearing advocates for the parties ( 4 ) and considering the reasons given, it does not appear to be perverse finding not based on evidence. 5. The second point that there was no opportunity to file counter written statement is concerned, no doubt, there was no such opportunity appears to have been given in as much as after receiving written statement and counter claim of respondent No. 2 at Exh. 25, date was not fixed for counter written statement by the plaintiff. However, perusal of the written statement filed by respondent No.2 clearly shows that it was both written statement and counter-claim. The provisions of Civil Procedure Code, under Order 8 Rule 6B clearly indicate it was claim for possession on title. The title of defendant is no more disputed fact. In the First Appellate Court, no such ground was taken that the plaintiff/appellant was wanted to file any counter written statement and the same may be accepted and for that purpose the matter should be remanded. This new ground is made out for the first time before this Court. No prejudice is shown to have been caused. Judgment is mainly on facts. In the circumstances of the case, in my opinion, there is no merit in the appeal. No substantial question of law arises. ( 5 ) Hence, the appeal is dismissed at the stage of admission. 6. In view of dismissal of the second appeal, Civil Application No. 3670 of 2010 does not survive and it is disposed of as such. [P.R. BORKAR,J.] snk/2010/JUN10/sa184.10