1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.576 OF 2005 Bharat Ganpati Gavali ..Appellant Versus Wanmala Dashrath Alte ..Respondent ... Shri A.R.Nikam, Advocate for the appellant and Shri T.M.Venjane, Advocate for respondent. ... CORAM : R.M.BORDE, J. Dated : 23.7.2009 PER COURT :- 1. Heard learned counsel for the respective parties. 2. Appellant (defendant), in the present appeal, has raised an exception to the concurrent judgments and orders of both the Courts below. 3. Respondent (plaintiff) had instituted Regular Civil Suit No.669 of 1999 claiming relief of cancellation of the sale deed as well as for decree for perpetual injunction. The plaintiff claims that she was owner of the residential property, situated within the limits of Village Panchayat Murud. According to her, taking dis-advantage of her illiteracy, the defendant has got executed sale deed of the residential property on 2.7.1998. It has been shown in the sale deed that consideration of Rs.26,000/- has been passed over to her. According to her, she had obtained loan of Rs.5,000/- 2 from the defendant and as a pre-condition of advancement of loan, he insisted for execution of the registered agreement for sale and under the pretext of execution of a registered agreement for sale, the defendant is alleged to have got executed the sale deed. The plaintiff alleges that the defendant has played fraud upon her. She prays for cancellation of the sale deed and grant of perpetual injunction. She claims that she is in possession of the immovable property and defendant is trying to evict her from the premises. 4. The defendant appeared and resisted the suit by filing written statement. According to him, case put up by the plaintiff in respect of advancement of loan is false. In fact, it was the plaintiff who was in need of money and as such, she requested for advancement of Rs.5,000/- towards hand loan. The plaintiff was intending to alienate the plot and at her request, the plot was purchased by the defendant for consideration of Rs.26,000/-. According to defendant, thereafter, he has raised construction over the plot. According to him, since the date of sale deed, he is in possession of the plot and occupying the same legally. He prayed that no prohibitory order of injunction be issued against him. Defendant has requested to dismiss the suit with compensatory costs of Rs.5,000/-. 5. The trial Court, after recording the evidence of the parties came to the conclusion that there is no evidence in respect of passing of consideration in favour of the plaintiff and as such after holding that the sale deed was got executed by the defendant by practicing fraud upon the plaintiff, the Court granted declaratory relief of cancellation of the sale deed and also issued prohibitory order of injunction against the defendant. 3 6. The judgment of the trial Court was challenged at the instance of the defendant, in Regular Civil Appeal No.21 of 2003, before the learned Ad-hoc Additional District Judge, Latur. It came to be dismissed on 17.6.2004. 7. I have perused the judgments of both the Courts below. Both the Courts below have recorded findings, on appreciation of evidence, to the effect that defendant has failed to establish passing of consideration in favour of the plaintiff. It transpires from the sale deed that it was got executed by defendant for consideration of Rs.26,000/-, amount of Rs. 5,000/- was paid as an earnest amount and balance was paid before the execution of the document. The recitals contained in the document clarifies that the amount of Rs.26,000/- has already been paid to the plaintiff. However, there is no evidence, placed on record, in respect of passing of consideration in favour of he plaintiff. 8. It is also not controverted that the plaintiff is an illiterate lady. Apart from this, the another circumstance that has been taken into consideration by the Courts below is that after execution of the alleged sale deed, no mutation has been recorded in the Gram Panchayat showing the name of defendant. The Courts below found that the plaintiff is in possession of the property, which is an additional circumstance strengthening the findings of facts recorded by the Courts below. I am of the opinion that the findings of the Courts below, based on evidence on record, need not be interfered with by this Court, in Second Appeal, while exercising powers under section 100 of Code of Civil Procedure. No substantial question of law arises for consideration in the present appeal. 4 9. Second Appeal, in the result, stands dismissed. No order as to costs. 10. In view of dismissal of the Second Appeal itself, Civil Application No. 3952 of 2005 for injunction does not survive and accordingly stands disposed of. (R.M.BORDE,J.) ... akl