1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 420 OF 2010 Allabux S/o Miyasaheb Shaikh, & another .. APPELLANTS (Ori. Palintiff) VERSUS Anwar S/o Bashir Shaikh, & another .. RESPONDENTS (Ori.Defendants) ... Shri H.V. Tungar, Advocate for appellants CORAM : S.V. GANGAPURWALA, J. DATE : 15h SEPTEMBER, 2010. PER COURT : The present Appellants are the original plaintiffs. They have filed suit for cancellation of sale-deed executed by the plaintiff in favour of the defendant on 3rd June, 1999. It is case of the plaintiffs that said sale-deed was not out and out sale, but it was loan transaction. Both the Courts have disbelieved the case of the plaintiffs and have 2 held that the transaction is out and out sale. 2. Shri Tungar, learned Counsel for the appellants, vehemently contended that the Courts below have not properly applied the yard-stick governing the rules of Evidence. The Courts below have appreciated the evidence on the premise that no oral evidence can be led against the contents of the document i.e. sale-deed. According to him, the oral evidence ought to have been considered independently and after scanning the oral evidence Courts below ought to have arrived at just conclusion. According to him, the case comes under the exception of Section 91 & 92 of the Evidence Act. The learned Counsel relied on the Judgment of the Apex Court, in a case of “Smt. Gangabai V/s. Smt. Chhabubai, reported in AIR 1982 SC 20”, to buttress his submission that there cannot be a complete bar to adduce oral evidence in the face of a written document. 3. With the assistance of learned Counsels for the respective parties I have also gone through the Judgments passed by the Courts below. 3 No doubt, the bar under Section 92 of the Evidence Act cannot be attracted, when the case of the party is that the transaction recorded in the document was never intended to be acted upon interse between the parties and that the document is a sham. The dictum of the Apex Court, in this regard does not give rise to any debate. However, I have gone through the Judgments passed by the Courts below. It is manifest that the Courts have considered the oral evidence vis-a-vis recitals of the written document. So, also have considered the other circumstances such as, after the transaction of sale name of the defendant was mutated in the relevant revenue record. Even, the defendant was put into possession and the oral evidence of the plaintiff that the amount was to be repaid within six years and the interest at the rate of 2% could not be substantiated by any other evidence. Even as per the evidence of other witness i.e. PW-2 that transaction between the parties was transaction of sale. 4. In the light of this evidence, the Courts below have come to the conclusion that the 4 transaction between the parties was and out and out sale. The view taken by the Courts below is a possible view and cannot be said to be perverse appreciation of evidence. In the light of the above, no substantial question of law is involved in the Second Appeal, as such the Second Appeal is dismissed. However, there shall be no order as to costs. 5. Shri Tungar, learned Counsel for the appellants, at this stage submits that the Appellate Court in para No. 25 of his Judgment has observed that if balance consideration remained unpaid, then there is separate remedy for the purpose of recovery. If, the plaintiff in law is entitled to prosecute the remedy. Plaintiffs are at liberty to prosecute. However, the same can only be if it is permissible by law. [S.V. GANGAPURWALA,J] SDM*420.10SA