( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 131 OF 2005 Kerba s/o. Maruti Sabale & Ors. .. Appellants Versus Saheba Nivrutti Zarande .. Respondent Shri T.B. Bhosale, Advocate for the appellants. Shri P.R. Katneshwarkar, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 12.06.2009 P.C. :- 1. Heard Adv. Shri T.B. Bhosale for the appellants and Adv. Shri P.R. Katneshwarkar for the respondent. The learned advocates have taken me through judgment of the Trial Court and the First Appellate Court. 2. It is case of the plaintiffs/appellants that the suit property was belonging to Kerba. He was in need of money. The respondent was his close relative and therefore the plaintiff asked loan to the respondent/defendant. The respondent/defendant agreed to give loan, however, insisted on execution of sale deed in his favour. There was meeting of appellant No.1, respondent and some more persons, in which it was agreed ( 2 ) that appellant No.1 shall execute sale-deed in favour of the respondent and the respondent would re-convey the property whenever the amount is paid. At the same time it is case of the plaintiff that the sale-deed was nominal and was not to be acted upon and he continued to be in possession. The Trial Court held that if it was case of sale-deed with oral agreement of re-conveyance, suit should have been filed for specific performance of agreement, which is not filed. The case of specific performance of oral agreement is not made out. Alternatively, no prayer to that effect is there. In order to prove that the sale-deed was nominal and was not to be acted upon, only P.W.1 Kashibai is examined. Two witnesses examined are mainly on the point of possession and not on the question of what was the agreement. It was observed that P.W.1-Kerba who had entered into agreement and executed sale-deed, ought to have been examined. It is also pointed out that the witnesses who were present at the alleged meeting, in which the transaction was settled, are not examined. The attesting witnesses on the sale-deed are not examined. In view of this matter, the Trial Court and the First Appellate Court did not believe the story of it being nominal sale- deed, which was not to be acted upon. In-fact, the two versions, one of sale-deed with oral agreement of re- conveyance and nominal sale-deed not to be acted upon, do not go hand in hand. 3. After going through the reasons given, it ( 3 ) cannot be said that the view taken by the Trial Court and the First Appellate Court is in any way perverse or not based on evidence. 4. So far as injunction is concerned, the Trial Court so also the First Appellate Court held that the plaintiff failed to prove his possession over the suit property. It is finding of fact. The 7/12 extracts are consistent with the case that possession was delivered to the respondent at the time of sale-deed. The evidence of Kashibai and two witnesses was not accepted by the Trial Court or the First Appellate Court. The conclusion is reasonable. It cannot be said to be perverse and not based on evidence. In this view of the matter, this appeal cannot be admitted. 5. The Second Appeal is dismissed at the stage of admission. [P.R. BORKAR,J.] snk/2009/JUN09/sa131.05