1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 110 OF 2010 Pramod s/o Dattatraya Mishra .. APPELLANT VERSUS Chaburao s/o Tatyaba Chirke .. RESPONDENT Mr. N.G. Kale, Advocate for the appellant. Mr. Sachin Deshmukh, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 17th FEBRUARY, 2010 PER COURT : 1 This is an appeal by original defendant raising exception to the concurrent judgments recorded by the courts below. 2 Respondent / plaintiff instituted suit claiming specific performance of agreement alleged to have been entered into on 24-12-1991. The agreement to sell is in respect of a plot situate at village Kalegon Tq. Kaij and consideration amount settled was Rs.6,000/-. It is contended that plaintiff advanced amount of Rs.6,000/- and an agreement was got executed. However, defendant did not execute the sale-deed even after making 2 repeated requests. As such, plaintiff was constrained to approach the court. 3 Defendant resisted the suit by filing written statement. According to defendant, the transaction in question is in respect of advancement of loan and the document in question is not infact in respect of transfer of the suit plot. It is contended by the defendant that sum of Rs.6,000/- was returned back to the plaintiff. It is further contended that plaintiff was put in possession in his capacity as a tenant. Defendant, as such, prayed for dismissal of the suit. 4 Trial court after considering the evidence led by the parties came to the conclusion that the plaintiff has substantiated his case and as such granted decree of specific performance of agreement in his favour. Appeal preferred by the defendant / appellant herein being Regular Civil Appeal no. 104/1996 was decided by the 3rd Adhoc District Judge, Ambajogai who was pleased to dismiss the same by judgment and decree dt. 29-9-2007. 5 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for respective parties. Defendant wants to contradict the terms reduced into written document 3 and further takes contrary stand questioning the nature of the transaction. In view of the provisions of section 92 of the Evidence Act, it is not open for the defendant to question the terms recorded in the document without bringing the case within the parameters of relevant provisions. There is no evidence produced by the defendant in respect of contemporaneous oral agreement. The defendant wants to take a stand inconsistent to the terms of the document which is prohibited by proviso 2 to section 92 of the Evidence Act. In this view of the matter, the courts below have rightly discarded the case put up by the defendant in respect of the alleged contemporaneous oral agreement in respect of advancement of money. The view taken by the courts below is reasonable and proper. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa110.10.odt