1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.234/2010 SHIVCHARAN SOMA NANDESHWAR & OTHERS ..VS.. OMPRAKASH HARI TEMBHURNE =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order C ORAM : SMT. VASANTI A NAIK,J. DATED : 15th June, 2010. Heard Mrs. Jaya Mishra, advocate for the appellants. The appellants are the original defendants. A suit was filed by the plaintiff/ respondent for declaration of his ownership over the suit property and for recovery of possession of the same. It was the case of the plaintiff that the plaintiff had given possession of the suit property to the defendants only for reaping the summer crop for the period from December to May 2000 and it was agreed that the defendants should vacate the suit property after securing the summer crop. It was pleaded that the defendants were trying to obstruct the possession of the plaintiff over the suit property on the ground that the plaintiff had agreed to sell the suit property to the defendants by an agreement of sell dated 27.6.1999. The plaintiff pleaded that the plaintiff had never executed an agreement of sale on 27.6.1999 in favour of the defendants and had also not accepted any consideration in part. The Plaintiff therefore sought a decree for possession and permanent injunction restraining the defendants from obstructing the possession of the plaintiff over the suit property. The defendants denied the claim of the plaintiff and pleaded that the defendant no.1 had entered into an agreement to purchase, with the plaintiff on 27.6.1999 and plaintiff had delivered the possession of the suit property to the defendant no.1 on execution of 2 the agreement of sale. The defendants pleaded that the plaintiffs avoided to execute the sale deed and since then the defendant no.1 became the owner and possessor of the suit property. The defendants sought for the dismissal of the suit. The trial as well as appellate court held that the plaintiff succeeded in proving that he was the owner of the suit land and the defendants had dispossessed him from the suit land in the month of December, 2000. The trial court held that the plaintiff was entitled to relief of possession. The first appellate court on a re-appreciation of the evidence on record confirmed the findings recorded by the trial court. Both the judgments are challenged by this second appeal. The only submission made on behalf of the appellants that the appellants were entitled to protect their possession in view of section 53-A of the Transfer of Properties Act 1882 and it was necessary for the court to consider this aspect of the matter, is liable to be rejected, for the reason that the appellants have not pleaded that the appellants are entitled to protect their possession under the provisions of section 53-A and that the ingredients of the provisions of section 53-A were satisfied. In this case no such plea has been raised by the appellants in the written statement. In the absence of any pleadings and proof on the applicability of the provisions of section 53-A, the courts rightly did not consider the question and decided the matter on the issues involved in the case. Since the findings recorded by both the courts are pure findings of facts, based on a proper appreciation of material evidence on record and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE SMP