1 S.A.754/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 754/2010 Subhash s/o Kisanrao Thombare, Age : 57 years, Occu. Agri., R/o Undri, Tq. Kaij, District : Beed. ...Appellant. Versus Maruti s/o Waman Gade, Age : 67 years, Occu. Agril., R/o Undri, Tq. Kaij, District : Beed. ...Respondent. Mrs. M.A. Kulkarni, Advocate for the appellant. Mr. A.S. Shinde, Advocate for respondent. CORAM : A.V. NIRGUDE, J. DATED : 28th June, 2011. ORAL JUDGMENT : 1. By filing this second appeal, the appellant / plaintiff is trying to challenge the concurrent finding recorded by Courts below. The case of the appellant / plaintiff in short was as under. 2. He said that the respondent/defendant agreed to sell his land to him in 1988. There occurred an agreement for sale in writing and certain earnest was also paid. It is his case further that pursuant to the agreement, he was put in possession of the suit land. He said, since 1988, he enjoyed the possession and cultivated the land. He said, in the year 1991, the defendant obstructed his use and so he filed this suit for perpetual injunction. Initially, before suit summons could be served on the respondent/defendant, an advocate came before the Court with a plea that he was appearing for the respondent/defendant. The advocate thereafter, filed vakalatnama 2 S.A.754/2010 and filed a written statement for and on behalf of the respondent. His written statement was conceding to the claim of the appellant. But after few days, the respondent came before the Court and disowned earlier written statement. This time, he engaged another advocate and urged the Court to permit him to oppose the suit on merit by filing fresh written statement. Such permission was granted. Another written statement was filed and thereafter, the case was tried. In the written statement, the respondent / defendant took a clear stand that he did not agree to sell his land to the appellant / plaintiff. He denied the entire case of the appellant / plaintiff. The appellant / plaintiff therefore, had given application to prove his case about the agreement, about the execution of the document, about the payment of earnest and most important, about delivery of possession. On all these counts, the Courts below held that the evidence of appellant / plaintiff was not sufficient to hold that there occurred an agreement and that possession was delivered to him. On these premise, the suit was dismissed. 3. I went through the judgments of the Courts below and found that the learned judges of the lower Courts appreciated the evidence, specially the evidence of the appellant / plaintiff properly and returned findings. The learned advocate for the appellant / plaintiff however, contended that the Courts below failed to take into account the earlier written statement filed by the respondent / defendant. She said that the earlier written statement was binding on the respondent / defendant. I am afraid, this can not be an issue between the parties now because the respondent’s case that he had not engaged the advocate, who had appeared earlier for him and had 3 S.A.754/2010 not filed his written statement, has been accepted at initial stage by the learned judge of the trail Court, when the learned judge allowed him to file second written statement. The moment, second written statement came on record, all that was stated in the written statement filed earlier, had come to an end and had become ineffective. Despite of this, the appellant / plaintiff quite strenuously tried to prove that what happened at the time of filing first written statement, must be taken to be truthful and that the respondent / defendant should not be allowed to contest the suit on merits. But this was rejected at the trial stage. The Courts below specially the learned judge of the trial Court who had an opportunity to record evidence of the parties and who had permitted the respondent / defendant to file second written statement, has clearly found that the earlier attempt to file consenting Written statement was almost a fraud. In view of this finding, the learned judge of the trail court could have even initiated criminal action against concerned advocate of the respondent / defendant and probably also against the appellant / plaintiff. This finding is confirmed even by the learned judge of the first appellate Court. In view of this, the controversy in respect of the first written statement and second written statement has virtually come to an end and I expected the learned advocate appearing for the appellant to address the Court on the merits of the case. But this did not happen. The learned advocate appearing for the appellant, made no efforts to formulate substantive question of law arising in the appeal. 4. On the point of possession, the learned advocate appearing for the appellant contended that there is revenue record showing her client’s name as cultivator. She said, such revenue record is of 1995 4 S.A.754/2010 onwards. I am afraid, the suit was filed in the year 1991. The appellant / plaintiff ought to have shown his possession between 1988 and 1991. If this was not done, the subsequent record really would not matter. The appeal should therefore, fail. ORDER The appeal stands dismissed. Civil Application No. 16777/2010 is disposed of. [A.V. NIRGUDE,J.] ts k/2011/June28/sa754.10/ok