1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.435 OF 2009. Sudam S/o Badhu Patil ... Appellant. Versus Gopal S/o Ganesh Patil and others ... Respondents. ... Mr.S.V.Gangapurwala, advocate for the appellant. Mr.S.G.Bharuka, advocate holding for Mr.R.R.Mantri, advocate for the Respondent NO.1. ... CORAM : V.R.KINGAONKAR,J. Date : 30.11.2009. PER COURT 1. Heard Mr.Gangapurwala, learned advocate for the appellant. Mr.Bharuka, learned advocate holding for Mr.R.R.Mantri, advocate seeks adjournment on the ground that Mr.Mantri, has filed leave note. The request is rejected. 2 2. The appellant is original defendant No. 1 who has suffered decree for specific performance of an agreement of sale which is confirmed by the first appellate Court. There are concurrent findings of the Courts below as regards due execution of the agreement of sale by the appellant. Mr.Gangapurwala, would submit that the issue whether the suit property was held by the joint family members and, therefore, consent of all other members was necessary is the substantial question of law. He would submit that the Courts below rendered perverse finding as regards the exclusive ownership of the suit land by the appellant. He would further contend that copy of 7/12 extracts and other documents were produced before the first appellate Court but erroneously production of additional evidence was refused though documents were part of the public record and should be admitted in evidence as provided U/o 41 Rule 27 of the C.P.C. I find it difficult to countenance the arguments raised by Mr.Gangapurwala. First, there was issue before the trial Court as regards nature of the 3 property held by the appellant. The issue No.3 was framed as to whether the suit property belonged to the joint Hindu family. The issue no.3 was answered by the trial Court as "does not survive" because the issue No.l regarding exclusive ownership of the appellant was answered in the affirmative. On the basis of material placed on record, the Courts below have rendered concurrent findings that the suit property was not property of joint Hindu family as such but it was the property exclusively owned by the appellant. The contention of the original defendant Nos.2 to 8 was that the defendant No.1 (appellant) had no authority to execute the sale in question. They submitted that the suit land is the joint Hindu family property owned by them along with the defendant No.2 and, therefore, he could not have entered into the agreement without their consent. Significantly, those contesting defendant Nos.2 to 8 have not appealed against the judgment and decree rendered by the trial Court, in the first appellate Court and the Civil Appeal No.4/2005 was filed only by the present appellant. He is the only contesting defendant. 4 In other words, defendant Nos.2 to 8 meekly surrendered to the finding of the trial Court and the first appellate Court that the suit property is not of the joint Hindu family but is exclusively owned by the appellant. Obviously, no such issue can be raised now at the instance of the appellant who is the contracting party. The appeal does not involve any substantial question of law as such. It has come on record that the suit property was purchased from one Somji Dattu in name of the defendant No.1 i.e.the appellant. It is well settled that there may be presumption as regards existence of the joint Hindu family but there can not be presumption that the joint Hindu family was having sufficient nucleus to acquire the property. 3. Considering the concurrent findings of the facts and the fact that the original defendant Nos.2 to 8 have never appealed before the first appellate Court or this Court regarding their interest in the property, now it is difficult to entertain the contention of the appellant that for want of their consent, the 5 agreement has become inexecutable. The appeal is destitute of substantial question of law and, therefore, is outside the scope of Section 100 of the C.P.C. In a similar situation, the Apex Court in "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975, held that the questions of facts can not be entertained by the 2nd appellate Court and, therefore, the appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa43509