1 S.A. No.812.2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.812 OF 2003 Indubai Mahadu Kathe Died through L.Rs. .. APPELLANT VERSUS Laxmibai Dattatraya Gadekar ...RESPONDENT ... Shri A.S. Bajaj, Advocate for the appellant Shri A.N. Nagargoje, Advocate for respondent ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is plaintiffs Second Appeal. The plaintiff had filed a suit for declaration and for reconveyance of the suit property in her favour. The trial Court dismissed the suit. The plaintiff preferred an appeal. The appellate Court also dismissed the appeal. The plaintiff has assailed the said Judgment in the present 2 S.A. No.812.2003 Second Appeal. 2. Shri Bajaj, learned Counsel for the appellant contends that the Courts below while appreciating the evidence have lost sight on three aspects. 1] The possession is with the plaintiff. 2] The defendant did not enter into the witness box and 3] Inadequacy of consideration. All these aspects would show that the transaction between the parties was not of sale of the suit property but the sale-deed was got executed from the plaintiff by defendant by playing a fraud, and as such declaration ought to have been granted by the Courts below and the defendant should be directed to reconvey the suit property. 3. Per Contra, Shri Nagargoje, learned Counsel for the respondents submitted that both the Courts on appreciation of evidence have come 3 S.A. No.812.2003 to the conclusion that the plaintiff could not prove fraud. The said finding is a finding of fact, even it could not be shown that the consideration amount was so inadequate to draw a presumption of fraud. The index relied upon does not show real state of affairs. He further submitted that even the said document for which declaration is sought is not produced on record. 4. With the assistance of learned Counsel for the respective parties I have gone through the record. Initial burden is on plaintiff to prove fraud. The execution of the document is not a disputed fact. The plaintiff contends that she had executed the document on the premise that a mortgage-deed is being executed. It was for the plaintiff first to establish that fact once said fact is proved, then burden would shift upon the defendant to disapprove the said fact. The Courts have observed that the plaintiff had admitted that the said document was read over to the plaintiff and thereafter, she has executed the said document. Even the contents were explained to the plaintiff’s, by the Sub-Registrar. When 4 S.A. No.812.2003 the Courts have found plaintiffs have failed to prove fraud, it would be immaterial if the defendants stepped into the witness box. As far as inadequacy of consideration is concerned, only the index has been filed on record. There is nothing on record to show that the said index filed was in respect of property similarly situated. 5. It is pertinent to note that even the document in respect of which declaration was sought was itself not produced on record. As such, in absence of the instrument on record, no such declaration also could have been granted. The contents of the documents will have to be assailed while going through the evidence. But as the document was not before the Court the same could not have been gone into. In absence of the said document no relief of declaration could have been granted in respect of the said document. 6. The Courts below on evaluation of the evidence have come to a possible conclusion. The Second Appeal cannot be entertained on the 5 S.A. No.812.2003 ground that some other conclusion could have been possible. In the light of above, Second Appeal is dismissed. However, there shall be no order as to cost. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*