:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.547 OF 2008 SECOND APPEAL NO.547 OF 2008 SECOND APPEAL NO.547 OF 2008 Sau. Hirabai Motiram Pawar ...Appellant. v. 1. Venubai Eknath Dugad & Ors. ...Respondents. Mr.R.Y.Pai i/by Ajit A. Kocharkar , advs. for the Appellant. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 16th September, 2008. DATE: 16th September, 2008. DATE: 16th September, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for both the parties. The appellant before this Court is the original plaintiff and the respondents are original defendants. Admittedly, the defendant no.1 was the owner of the suit property bearing gat no.392. According to the plaintiff, defendant no.1 had agreed to sell the suit property to her for a consideration of Rs.55,000/- and an amount of Rs.10,000/- was paid by her to the defendant no.1 as earnest money. Balance amount was to be paid on execution of sale deed after obtaining necessary permission from the tenancy authority. Tenancy authorities were also moved for obtaining permission. However, the defendant no.1 backed out. Thereafter the defendant no.1 sold away the suit property to the defendant no.2. Therefore, plaintiff filed special civil suit no.186 of 1998 for specific performance of the contract. Defendant no.1 contested :2: suit contending that the agreement for sale was cancelled and she had repaid the amount of Rs.11,000/- to the plaintiff and, therefore, agreement was also destroyed. Defendant no.2 contended that she is the bonafide purchaser for the value without any knowledge of agreement between the plaintiff and defendant no.1. 2. Several issues were framed by the trial Court and evidence was led by all the parties. After hearing the evidence, the trial Court dismissed the suit with compensatory cost. The plaintiff preferred regular civil appeal no.11 of 2002. That appeal was allowed only in respect of compensatory cost howsoever the decree of dismissal of the suit was maintained. In such circumstances, plaintiff has preferred the second appeal. 3. On perusal of the record, it appears that the plaintiff could not produce the original agreement on which the suit is based. According to the defendant no.1 she had repaid the amount of Rs.11,000/- and the agreement was cancelled and, therefore, document was destroyed. She is supported by D.W.2. Courts below accepted the plea of the defendant no.1. The learned counsel for the appellant vehemently contended that even though before the trial Court no evidence was placed in respect of application moved by the defendant no.1 before the Tenancy Authority for the purpose of :3: obtaining permission for sale, the plaintiff/appellant had moved an application before the Appellate Court under Order 41 Rule 27 seeking permission to produce those documents. Permission was granted and the documents were exhibited but the appellate Court did not consider those documents and thus, the appeal has been dismissed by the lower Appellate Court without application of mind. 4. Even for a moment if the contention of the plaintiff is accepted that the defendant no.1 had made an application before the Tenancy Authority and later on, backed out, that does not further the case of the plaintiff anymore because according to the defendant no.1, parties had agreed to cancel that agreement for sale and, therefore, she had repaid the amount of Rs.11,000/- and the agreement was destroyed. Normally the plaintiff was expected to be in possession of that agreement but she did not produce the same. According to her, document was given by her to the defendant no.1 for obtaining permission from the Tenancy Authority. On the other hand, defendant and her witness specifically deposed that the document was destroyed on repayment of Rs.11,000/- to the plaintiff. Plea of the defendant no.1 has been accepted by the Courts below. This is purely question of fact and there is concurrent finding of fact of the Courts below in this respect. I do not find any substantial question of law involved in the :4: present appeal. 5. Therefore, the appeal stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)