1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION SECOND APPEAL NO.232 OF 2005 Dada Babu Raut ( Mali) & Ors. : Appellants. Versus Janardhan Genu Rokade & ors. : Respondents. Mr. S D Thokade for the Appellants. None for the Respondents. CORAM : C.L.PANGARKAR, J. DATE : 8th JANUARY 2010 P.C. 1. Heard the learned counsel for the Appellants 2. This Second Appeal has been preferred by the Original Plaintiffs against the Judgment and decree of the learned III Additional District Judge, Pandharpur in Reg. Civil Appeal No.35 of 1986 by which the Appeal filed by the Plaintiffs came to be dismissed confirming the order passed by the trial Court. 3. The Plaintiffs instituted a suit for possession of the suit property. It was the contention of the Plaintiffs that a sale deed was executed in favour of the Respondents­Original Defendants towards security of the loan obtained by them. It is their contention that the Defendants have not been delivering back the possession to them. 2 4. The Defendants resisted the said suit on the ground that it was a genuine agreement for sale. The possession was delivered to them under that agreement for sale and they have paid entire consideration to the Plaintiffs. They therefore contended that they are entitled to protect their possession under Section 53A of the Transfer of Property Act. 5. The learned Judge of the trial Court as a fact found that the sale deed was not executed by way of any security. It is also found that the Plaintiffs had agreed to sell the suit property to the Defendants and put the Defendants in possession of the suit property and the Defendants were ready and willing to perform their part of the contract. It was also found that the Defendants were entitled to protect their possession under Section 53A of the Transfer of Property Act. Holding so, the suit was dismissed. 6. The Plaintiffs preferred an Appeal against the dismissal of their suit before the District Court. The Appellate Court also concurred with the findings recorded by the learned Judge of the trial Court and dismissed the appeal filed by the Plaintiffs. Hence this Second Appeal. 3 7. The learned counsel for the Appellants/Plaintiffs submitted before me that the Courts below have fallen in error in dismissing the suit of the Plaintiffs. According to him the Defendants were not entitled to any protection under Section 53A of the Transfer of Property Act, in view of the fact that they had not instituted a suit for specific performance of contract with the period stipulated. He submitted that the fact that the Defendants had not filed such a suit itself suggests that they were not ready and willing to perform their part of contract. 8. The submission has no force. The Defendants have paid entire consideration payable under the contract to the Plaintiffs. Nothing was therefore required to be done by the Defendants in furtherance of the contract. The Courts below have considered this aspect. Both the Courts have found that the Defendants have paid entire consideration, they were put in possession in pursuance of the contract and they were entitled to protection under Section 53A of the Transfer of Property Act. These are the concurrent findings of facts. There is no substantial question of law involved in the above Second Appeal. Since it is held by the Courts below that the Defendants were ready and willing to perform their part of the contract and they had paid entire consideration and they were certainly entitled to protection under Section 53A of the Transfer of Property Act. I 4 do not find any perversity in the findings recorded by the Courts below. There is therefore no substance in the Appeal. Hence the Second Appeal is dismissed in limine. [C.L.PANGARKAR, J]