1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 518 OF 2007 Vasudeo Nivruti Jedhe .. APPELLANT VERSUS Sahebrao Ramrao Maske & another .. RESPONDENTS Shri Vivek Bhavthankar, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 20 th July, 2009. PER COURT : 1 Original plaintiff is raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 310.1983 claiming cancellation of the sale-deed in respect of land survey no. 32 to the extent of 7 acres and 30 gunthas. According to the plaintiff, the property was nominally transferred in the name of father of the defendants in the year 1971 for consideration of Rs.1,500/-. The transaction was infact money lending transaction and was not an out and out sale. It is his contention that the plaintiff sold his rest of the property in the year 1981 for consideration of Rs. 1,600/- and repaid the loan. However, father of the defendants did not execute the reconveyance deed. Plaintiff was therefore constrained to file the instant suit seeking declaration in respect of cancellation of the sale- 2 deed. Defendants appeared and resisted the suit. According to the defendants, father of the defendants was put in possession of the property after execution of the sale-deed. It is contended that the recitals in the document cannot be controverted by leading ocular evidence. The terms of written document shall have a precedence and the oral evidence controverting such terms is not admissible. Trial court after recording evidence of the parties came to the conclusion that plaintiff has failed to establish his case and accordingly dismissed the suit. Judgment and decree passed by the trial court was subjected to appeal at the instance of plaintiff being Regular Civil Appeal no. 227/1989. The appeal came to be heard and disposed of by the 4 th Additional District Judge, Beed on 25-6-1999 who was pleased to dismiss the same. 3 I have perused the judgment and order passed by both the courts below. There is nothing on record to arrive at conclusion that the transaction in question was a nominal one and was infact a money lending transaction and not out and out sale. The most important aspect of the matter is that after execution of the sale-deed, possession of the property was transferred in favour of father of the defendants. This aspect goes against the case put up by the plaintiff. It is to be taken note of that the documentary evidence will have precedence and oral evidence controverting the terms of written document is not admissible in accordance with the provisions of section 91 and 92 of the Evidence Act. Appeal thus raises essentially the questions relating to appreciation of evidence. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 3 4 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa518.07.odt