1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.586 OF 2006 Panditrao s/o Bhagwanrao Rajurkar, died through L.Rs. Appellants Versus Sow.Anandibai w/o Anantrao Rajurkar & others Respondents Mr.S.G.Chapalgaonkar, advocate for appellants. CORAM: R.M.BORDE, J. DATE : 21st July, 2009. P.C.: 1 Appellant-original plaintiff is raising exception to the concurrent findings recorded by the Courts below. 2 Appellant-original plaintiff instituted Regular Civil Suit No. 315/86 claiming a declaration that the sale deed executed by plaintiff in favour of defendant no.1 on 27.,02.1970 be declared as ineffective and not binding upon him. Plaintiff also claimed possession of suit property along with future mesne profits. It is the contention of plaintiff that defendants no.2 and 3 are brothers inter se, whereas defendant no.1 is wife of defendant no.2. The disputed property was leased out in favour of 2 one Prayagbai and said Prayagbai had claimed tenancy rights in relation to the property. In order to settle dispute with Prayagbai, it is contended by plaintiff, that an amount of Rs.4000/- was borrowed from defendants and same was handed over to Prayagbai and the agricultural lands were got released. As a security for advancement of loan, nominal agreement to sale came to be executed at the instance of defendants in the name of defendant no.1. Subsequently, a sale deed is also got registered on 27.02.1970. According to the plaintiff, the alienation is not for valuable consideration and the property has been sold in favour of defendant no.1 by way of security for advancement of an amount of Rs.4000/- borrowed from defendants no.2 and 3. The plaintiff, as such, claimed a declaration, as stated above. 3 Defendants appeared and controverted the claim raised by plaintiff by filing written statement. Apart from denying contentions raised by the plaintiff, defendants have also pleaded bar of limitation for claiming relief of declaration in respect of sale deed executed in the year 1970. 4 The trial Judge, after recording evidence of the parties, did not find favour with the case put up by plaintiff and dismissed the suit. The judgment and decree passed by the trial Court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal No.186/2001. The appeal came to be heard and disposed of by 2 nd Additional District Judge, Parbhani, who was pleased to dismiss the same by judgment and order dated 03.12.2003. 3 5 I have perused the judgments delivered by both the Courts below and heard arguments advanced by Shri S.G.Chapalgaonkar, learned Counsel for appellants. 6 That, so far as case put up by the plaintiff in respect of advancement of an amount of Rs.4000/- from defendants and document of sale being executed by way of security for advancement of loan, the plaintiff has failed to examine Prayagbai, who was the beneficiary of amount alleged to have been borrowed by plaintiff. In the absence of evidence of Prayagbai, it cannot be presumed that property was encumbered with tenancy rights created in favour of Prayagbai and in order to release the property, amount was advanced in her favour, which amount was borrowed from defendants no.1 and 2. It is not permissible to consider oral evidence with a view to contradict the terms contained in written document. The plaintiff has also failed to lead evidence and prove the circumstances which necessitates to draw an inference as regards falsity of the terms contained in the written document. The ocular evidence led by the plaintiff with a view to contradict terms of the written document i.e. sale deed executed in favour of defendant no.1, is not admissible in view of provisions of Sections 91 and 92 of the Evidence Act. 7 Apart from this aspect, it is also to be taken note of that the suit presented by plaintiff is obviously barred by limitation. The sale deed in question is executed on 27.02.1970, whereas plaintiff is questioning the transaction in the year 1986, which claim is obviously barred by time. The concurrent judgments recorded by the Courts below do not call for any interference. No substantial question of law arises for consideration in the 4 appeal. 8 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa58606