CSA 409/06 (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.409/2006 Smt. Kamla Devi vs. Kuldeep Singh through Legal Heirs Date Of Judgment :: 10th April, 2009 Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Abhay Bhandari, Senior Counsel with Mr. Kinsukh Jain, for appellant. Mr. Mahendra Goyal, for respondents. ........ By the Court :- This is plaintiff's second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 19/5/2006 passed by Additional District Judge No.2, Ajmer in Civil Appeal No.22/2001(108/01,78/01) confirming the judgment and decree dated 30/3/2001 passed by Civil Judge (Junior Division) South, Ajmer in Civil Suit No.62/1993 (75/89) whereby the suit of the plaintiff for execution of sale deed in her favour and injunction was CSA 409/06 (2) dismissed. 2. Brief facts of the case are that the plaintiff-appellant Smt. Kamla Devi filed a suit with the averments that plaintiff was in need of money and therefore, she mortgaged the disputed property with Kuldeep Singh on 5/10/1967 for an amount of Rs.2000/- , for the security of money the defendant Kuldeep Singh got a document executed in his favour giving it colour of sale deed; that it was agreed between the parties that property in dispute will be reconveyed to plaintiff Smt. Kamla Devi and for that purpose another document will be executed; that possession of the land in dispute always remained with the plaintiff Smt. Kamla Devi; that on 28/6/1986 the plaintiff requested the defendant to execute the sale deed, on this defendant accepted the amount of Rs.2000/- and executed the document on the same day whereby the earlier document dated 5/10/1967 was cancelled and thereafter the plaintiff constructed one room on the disputed land and also got electric CSA 409/06 (3) and water connections; that thereafter again the defendant and his son threatened the plaintiff that she will be forcefully dispossessed, therefore prayer was made for a decree against the defendant for execution of sale deed of the disputed land in her favour and also for permanent injunction. 3. The defendant denied the allegations made in the plaint and averred that the document dated 5/10/1967 is a pure and simple sale deed. It was also averred that after execution of the sale deed possession was also handed over to the plaintiff by the defendant and the property was never mortgaged to the defendant Kuldeep Singh and the electric and water connections belong to the defendant. The defendant also denied having executed subsequent document dated 28/6/1986. 4. On the basis of the pleadings, the trial court framed the issues and after recording the evidence and hearing the parties dismissed the suit of the plaintiff which in turn was affirmed by the First CSA 409/06 (4) Appellate Court. 5. Heard learned counsel for the parties on the point of admission and perused the impugned judgments and the material available on the record. 6. The appellant-plaintiff mainly prayed for a decree of specific performance of the document Ex.1 dated 28/6/1986. It is not disputed that the plaintiff Smt. Kamla Devi and two witnesses Vijai Mehra and Anoop of the document Ex.1 have not come in the witness box and only one witness Naresh Choudhary, power of attorney holder and son of the plaintiff, came in the witness box and from his evidence it appears that he was not present at the time of execution of the document dated 28/6/1986 and at that time he was only 10 years of age. The trial court and the First Appellate Court reached at a conclusion that Ex.1 has not been proved, therefore no question arises for granting decree of specific performance of the contract. There is concurrent finding of fact of both the learned courts below in this regard and I do not find any CSA 409/06 (5) perversity or illegality in the same. No substantial question of law appears to be involved in this second appeal and this appeal being devoid of any force deserves to be dismissed. 7. Consequently, this second appeal is hereby dismissed. (J.R. Goyal),J. V.S. Shekhawat/- Jr. P.A. D34