sa248.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.248 OF 2010 NAGNATH SHANKARRAO MAHAJAN (BARDALE). ... APPELLANT. VERSUS MALIKARJUN RAGHUAPPA PATHARKAR (DECEASED) AND ORS. ... RESPONDENTS. ... Advocate for Petitioners: Mr. Bedre Vinayak Sudhakar Advocate for R.No.2, 3 and 1A to 1D : Mr. Hange Dayanand M. ... CORAM : S.S. SHINDE, J. Dated: December 09, 2011 PER COURT: 1. Heard learned Counsel for the appellant. He submits that the suit was filed for declaration and injunction. The sale deed which was executed in 1978 in favour of defendant No.1 was nominal. He invited my attention to the grounds taken in the second appeal and in particular, ground No.IX, which reads thus: "IX) Whether courts below are justified in holding that there was sufficient pleadings before the court, however, sa248.10 2 the matter was proceeded an exparte and against the defendant No.1 and the no W.S. order was passed against the defendant No.3 and the defendant No.2 has filed only say to the application filed by the plaintiff for temporary injunction and as such there is no pleadings before the court?" 2. Relying on the said ground the learned Counsel for the appellant would submit that no W.S. was filed by the defendants, suit proceeded exparte, defendant No.1 did not step into witness box and in spite of this, the Court below has dismissed the suit filed by the appellant. According to the learned Counsel for the appellant, father of the appellant did purchase the suit property in the name of defendant No.1 Malikarjun and appellant. At the cost of repetition, the Counsel for the appellant would submit that the said sale deed at Exh. 131 was nominal, entire consideration was paid by the father of the appellant, said sale deed was executed in favour of defendant No.1 and the appellant, which was nominal and this aspect has not been considered by both the Courts below. The appellant and his father continued to pay all taxes in respect of the suit property since beginning, the defendant No.1 is not in possession of the suit property. Cause of action arose when the defendant No.1 sold the suit property to defendant No.2 in the year, 1997. Therefore, the suit was filed for declaration and injunction. Both the courts have not property appreciated the sa248.10 3 contention of the appellant and evidence on record and reached to erroneous conclusion and, therefore, this second appeal deserves consideration. He also invited my attention to other grounds taken in the second appeal and submitted that this appeal may be allowed. 3. On the other hand, the learned Counsel for the respondents invited my attention to Exh.131 i.e. sale deed executed in the year, 1978 and the finding recorded by the courts below, and submitted that both the courts have examined the contents of the sale deed and arrived at the correct conclusion that the said sale deed was executed in favour of the appellant and defendant No.1 and, therefore, necessary consequence would be that defendant No.1 was entitled for 50% share in the suit property and accordingly, the portion which fell to his share, was sold out by him in the year, 1997. He further submits that there are concurrent findings of both the Courts below, after appreciation of the evidence and, therefore, this Court may not interfere with the impugned judgment and order. 4. Upon hearing the learned Counsel for the parties and after perusal of the sale deed at Exh.131 from the original sa248.10 4 record, it is abundantly clear that the sale deed had been executed in favour of the appellant and defendant No.1. This fact is not disputed even by the appellant. The contention of the appellant that the said sale deed was nominal, was not supported by any convincing evidence. Both the Courts have taken a view that if consideration amount was passed on by the father of the appellant, then there was no necessity to purchase the property in the name of defendant No.1. The lower appellate Court, in para 20 of the impugned judgment, has considered the contention of the plaintiff that the entire consideration amount of the suit plot was paid by the plaintiff's father and negated the said contention. It is also observed that if the defendant No.1 had no any right, title or interest, then why they plaintiff entered into an agreement of purchasing the said open space from the defendant No.1. 5. The contention of the learned Counsel for the appellant that the defendant did not adduce any evidence and did not enter into the witness box and, therefore, the case of the appellant should have been accepted, cannot be accepted in the light of Exh.131 i.e. sale deed executed in favour of the appellant and the defendant No.1 in the year, 1978. The said sale deed was very much on record before both the Courts and sa248.10 5 upon appreciating the contents of the said sale deed, both the Courts have reached to the definite conclusion that the suit property was purchased in the name of the appellant and defendant No.1 and necessarily, defendant No.1 had share in the property. Merely because defendant No.1 had not filed WS or not entered into the witness box, will not nullify the effect of the sale deed Exh.131. 6. The view taken by the Courts below is after appreciating the evidence brought on record and in particular, Exh.131 i.e. sale deed executed in favour of the appellant and defendant no.1 in the year, 1978. It is also necessary to observe that if the said sale deed was nominal and the same was executed in the year, 1978, why the appellant took more than 18 years to file the suit. 7. Therefore, in the aforesaid background and from perusal of the grounds taken in the second appeal, it is clear that none of the grounds could form substantial question of law so as to consider the second appeal. I have considered the submissions of the learned counsel for the appellant and in particular, Ground No.IX in the appeal. However, from perusal of the original sale deed at Exh.131, I find that the sale deed was sa248.10 6 executed in favour of the defendant No.1 and the appellant. Both the Courts below have arrived at a correct conclusion. No case is made out for interference. Second appeal stands dismissed. [ S.S. SHINDE ] JUDGE. ... PLK/*