1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.483/2009 (Shri Gopal Krishna Deosthan, Bhandara thr. Wahiwatdar Bhimashankar & others VERSUS Shantabai wd/o Narayan Burade) WITH Second Appeal No.484/2009 (Shri Gopal Krishna Deosthan, Bhandara thr. Wahiwatdar Bhimashankar & others VERSUS Smt. Shantabai wd/o Narayan Burade) WITH Second Appeal No.485/2009 (Shri Gopal Krishna Deosthan, Bhandara thr. Wahiwatdar Bhimashankar & others VERSUS Shantabai wd/o Narayan Burade & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri V.M. Deshpande, counsel for the appellant. Shri H.B. Gaikwad, counsel for the respondent nos.1 to 3. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 5, 2010 . Since common questions of facts arise for determination in these appeals, they are heard together at the stage of admission and are decided by this common order. The appellants are the original plaintiffs in all these three appeals. They had filed three different suits against the defendants for a declaration that the sale-deed executed in their favour on 3rd of November, 1979 by one Nagorao Joshi was null and void and was not binding on them. According to the plaintiffs, the property belonged to a Deosthan and Nagorao Joshi was the Wahiwatdar of the said Deosthan. According to the plaintiffs, the plaintiffs were the 2 legal heirs of Nagorao Joshi and also Wahiwatdar of the trust. It was pleaded by the plaintiffs that there was no legal necessity to transfer the suit properties in favour of the defendants. The defendants denied the claim of the plaintiffs and pleaded that the sale-deeds were executed in favour of the defendants by Nagorao by accepting the consideration of Rs.8,000/-, Rs.3,500/- and Rs.7,500/- from the defendants. The defendants pleaded that the suit property was sold to the defendants for legal necessity as there was some Takavi loan on the property and the properties were sold for discharging the debt on the property. The defendants pleaded that there was no question of obtaining the sale-deeds by playing fraud on Nagorao Joshi. The trial Court, on an appreciation of the evidence on record, held that the plaintiffs failed to prove that Nagorao Joshi was incapable of understanding the act of sale of the property due to his illness on 1st of November, 1979. The Court held that the plaintiffs failed to prove that the defendants had practiced fraud on Nagorao Joshi by getting the sale-deeds executed in their favour. It was also held that the sale was not without consideration and the suit of the plaintiffs was liable to be dismissed. 3 Since the question of legal necessity was not decided by the trial Court, the first appellate Court decided that issue also along with the other issues, framed by the first appellate Court. The point in regard to the legal necessity was framed as the first appellate Court was directed to decide the same by a judgment passed by the High Court in a second appeal. The first appellate Court confirmed the findings recorded by the trial Court that Nagorao Joshi was not in such a position so as not to execute the sale-deeds because of his illness on 1st of November, 1979 and fraud was practiced on Nagorao Joshi by the defendants. The other finding about the payment of consideration by the defendants was also confirmed by the first appellate Court. The first appellate Court further held that the sale-deeds were executed by Nagorao Joshi for legal necessity and for the benefit of the trust/Deosthan. The findings recorded by both the Courts are based on a proper appreciation of the material evidence on record. The Courts considered the oral as well as the documentary evidence on record to record the concurrent findings of facts on the issue of Nagorao Joshi understanding the transactions dated 3rd of November, 1979 and about the payment of consideration to him. As regards legal necessity, 4 the first appellate Court held that there was evidence on record to show that at the relevant time when the agreement of sale was executed, there was a Takavi loan of Rs.11,000/- on the property. It was stated in the agreement of sale, which was exhibited, that the suit land was barren land and was not yielding much income. The first appellate Court relied on a statement of the plaintiff in his examination-in-chief that an amount of Rs.11,000/- was first payable by the defendant towards Takavi and then an amount of Rs.19,000/- was payable before the execution of the sale-deed. The first appellate Court held that the agreement of sale and the oral evidence of the parties supported the case of the defendant that Nagorao had to pay the Government dues and the dues of Soil Conservation Department. According to the first appellate Court, the land was barren as could be seen from the agreement of sale at Exh.130 and was not suitable for cultivation. This document had been signed by Nagorao Joshi himself. Hence, the first appellate Court rightly did not give much weightage to the 7/12 extracts placed on record. The Court held on the admission of the plaintiff and on the evidence of the defendants that the land was burdened with Government dues including Takavi Loans. 5 The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The second appeals are dismissed with no order as to costs. JUDGE APTE