-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.470/2008. Shakil Khan Habib Khan Pathan .vrs. Ramvatibai Ramdas Shriwas ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : MARCH 17, 2009. The appellant is original plaintiff whose suit for specific performance was decreed by the Trial Court. The said decree has been reversed by the Lower Appellate Court. I have heard Shri Mohd. Faiyas Khan with Shri R. Joseph, learned Counsel for appellant and Shri I.S. Charlewar with Shri A. Dixit, learned counsel for respondent. At the request of Advocate Shri Khan, time of about half an hour was given to him after he was heard, to point out the admission of respondent / original defendant that she received amount of Rs.10,000/- as earnest from appellant / plaintiff. That admission could not be pointed out when the matter was taken up again. -2- The Lower Appellate Court has found that the contents of agreement at Exh.41 were not explained to the defendant who is illiterate lady. It further found that there was no evidence to show that amount of Rs. 10,000/- was received by the said lady. The evidence on record is only that of plaintiff and his witnesses and Lower Appellate Court has refused to accept it after noticing that the plaintiff was working as driver with one Advocate Udapure and was in a position to influence the defendant in the matter. It is to be noted that Exh.41 was prepared as dictated by plaintiff and Shri Udapure Advocate. Lower Appellate Court has specifically recorded a finding that there is absolutely no evidence to show that Exh.41 was at any time explained to respondent / defendant. Advocate Shri Khan, point out that respondent / defendant has accepted her thumb impression on document Exh.41, but however, she has not accepted that, by said document she undertook to sale the said property to plaintiff. The consideration by Lower Appellate Court in paragraph nos. 11, 12 and 13 of its judgment is not shown to be perverse at all. In paragraph no.14 the Lower Appellate Court has found that evidence of P.W.4 – Puran Sahare does not indicate any reference to agreement of sale and in paragraph no.16 it has also found that market rate -3- prevailing in 1989 was much more. It is the case of the plaintiff that defendant had agreed in 1989 to sell the suit property to him, if she succeeded against tenant in court case and after she got the premises vacated. It is thus clear that the court cases filed by the defendant against her tenants were over in the year 1995 and thereafter, the plaintiff made request to her to sell the suit property. The defendant in cross examination accepted that after the proceedings were over and tenant vacated, plaintiff had approached her for execution of sale deed, but then she has not stated that it was in pursuance of any agreement or much less agreement at Exh.41. The Trial Court has relied upon this part of evidence and then desire of defendant to sell the suit property, as evidence of agreement itself. The said approach of Trial Court is erroneous and Lower Appellate Court has correctly appreciated the evidence. In these circumstances, I do not find any substantial questions of law involved in the matter for determination. Second Appeal is therefore, dismissed. No cost. JUDGE Rgd.