( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 377 OF 2009 Kishanrao s/o Munaji Shelke .. Appellant Versus Geetabai w/o. Maroti Shelke and anr. .. Respondents Shri S.B. Bhapkar, Advocate for the appellant. Shri S.P. Katneshwarkar, Advocate for respondent Nos. 1 & 2. CORAM : P.R. BORKAR,J. DATED : 18.06.2010 P.C. :- 1. Heard Adv. Shri S.B. Bhapkar for the appellant and Adv. Shri S.P. Katneshwarkar for respondent Nos. 1 and 2. The original suit filed by the plaintiff/appellant is for declaration of ownership that the plaintiff has been owner of Gat No. 114 (old No. 512), admeasuring 54 R, situated at Kawalgaonwadi, Tal. Purna and for injunction not to disturb his possession and also for declaration that the sale-deed executed by respondent No.1 in favour of respondent No.2 on ( 2 ) 18.03.2005 be declared as not binding on the plaintiff. 2. The learned Civil Judge, Junior Division, Purna dismissed Regular Civil Suit No. 19 of 2005 on 03.07.2006 and the same judgment and decree is further confirmed in Regular Civil Appeal No. 89 of 2006 by the District Judge-3, Parbhani, on 16.01.2009. 3. At the time of arguments, the learned advocate for the appellant Shri Bhapkar pointed out to me paragraph Nos. 10,11,12 & 13 of the judgment of the First Appellate Court. He argued that in appeal the appellant wanted to produce agreement of sale dated 20.01.1986 on the basis of which he was put into possession of the suit land. However, its production was refused. He also drew my attention to application (Exh.9) for amendment of the plaint filed in the District Court. By the amendment application, the appellant/ plaintiff wanted to make out a case that respondent No.1 has entered into agreement of sale with him and on the basis of the same he was put into possession of the property. He also wanted specific performance of agreement of sale. Both the production of agreement of sale so also application Exh. 9 ( 3 ) for amendment of the plaint were rejected. It does not appear that any separate application was filed for production of agreement which is agreement of sale, but in the affidavit in support of production of documents, it is stated that original agreement dated 20.01.1986 was old document. Inspite of sufficient efforts, he could not trace out the same. Therefore, he could not produce the same in the Court. However, before 2-3 days of filing of the affidavit he could find out the same and therefore it was prayed that the production of the document be allowed. 4. One of the major things that is argued by Adv. Shri Katneshwarkar for the respondents is that the appellant inspite of knowing that there was no sale-deed executed by respondent No.1 in favour of the appellant, the appellant has approached the Trial Court with a false case that he is owner of the property. He sought declaration of his ownership. He also sought declaration that the sale-deed executed by respondent No.1 in favour of respondent No.2 was not binding on him because he was owner of the property. Now the plaintiff/appellant wanted to completely change said case before the District Court. He wanted to say that he was in ( 4 ) actual possession of the property on the basis of agreement of sale, thereby admitting that he had not become owner of the property and he had no title to the suit property. He also wanted by amendment to convert the suit for declaration of title and injunction into a suit for specific performance of agreement. The document was produced in the Court on 14.12.2007 and nothing was alleged regarding so called readiness and willingness to perform plaintiff’s part of the contract to sale. The agreement of sale produced with list Exh.30 is dated 20.01.1986. It shows that total consideration was Rs. 13,000/- and Rs. 2500/- were paid as earnest money. Nothing was pleaded regarding said agreement or payment or delivery of possession in consequence of agreement in the plaint. So, the plaintiff has deliberately suppressed the truth from the Trial Court. He wanted to deal with altogether different set of pleadings and those facts which were known to him were suppressed. It is worth noting that it is not that plaint was not amended pending hearing in the Trial Court. In-fact, since there was sale by respondent No.1 in favour of respondent No. 2 was pending the suit, respondent No.2 was added by amendment. So also para 3 was added to the plaint as per amendment carried out in November, 2005. It ( 5 ) cannot be said that the plaintiff had no opportunity to disclose truth to his advocate at least this time, assuming for a moment that there was some misunderstanding when original plaint was filed. The First Appellate Court also rightly observed that no case under Order 41 Rule 27 was made out. It can be appreciated if agreement of sale was not produced because it was not traceable as claimed by the plaintiff, but at least he should have averred that there was only agreement to sale. In-fact, he asserted that he was owner of the property and thereby claiming that respondent No.1 was a stranger having no title and right to sell the property. The averments in para 2 of the original plaint were sufficient to put notice to plaintiff and his advocate to know that there could not have been declaration of ownership in favour of the plaintiff, when the defendant had refused to execute sale-deed in his favour. 5. Ordinarily, this Court has been liberal in allowing amendment, but in the present case allowing the Second Appeal and thereby allowing amendment would be causing irreparable loss to the respondents/defendants in as much as necessary pleadings under section 16 (c) of the Specific Relief Act ( 6 ) were absent and it was never said in the original plaint that the plaintiff was ever ready and willing to perform his part of the contract and obtain sale-deed. I am not satisfied regarding bona fides in not coming to Court with truth. 6. Not being satisfied that this is a case wherein substantial question of law arises, the Second Appeal deserves to be dismissed. Hence, the Second Appeal is dismissed at the stage of admission. [P.R. BORKAR,J.] snk/2010/JUN10/sa377.09