1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.176 OF 2010 MADHAV BANDU MORE V/S NAMDEO KRISHNA PATIL (L.RS.) ... Shri K.C.Sant, Advocate for the appellant and Shri M.A.Thorbole, Advocate for respondent 1/C. ... CORAM : S.B.DESHMUKH, J. Dated : 8.9.2010 PER COURT :- 1. The appellant was the plaintiff in RCS No.48 of 2000 filed in the court of the learned Civil Judge J.D. Sindhkheda, District Dhule. The description of the suit property is given in the suit and has been referred to by the learned trial Judge in paragraph No.2 of the judgment. 2. According to the learned counsel for the appellant, original defendant No.2 is wife of the appellant. The appellant has purchased the suit plot in the name of his wife (defendant No.2.). Defendant No.2 does not have any source of income and was not having source of income on the date of transaction or at the relevant time. On account of discord amongst the appellant and his wife, they were residing separately. Deceased - defendant No.1 took undue advantage of the position that defendant No.2 2 was staying separately and got executed a sale deed of the suit property in his favour. Appellant claims to be the real owner of the property and further seeks declaration that the sale deed executed by defendant No.2 in favour of defendant No.1 is not binding upon him. He also raised a grievance that defendant No.2 was not real owner of the property and there is no passing of consideration of the property from defendant No.2 to erstwhile owner. 3. In response to the suit summons, defendants appeared and filed written statements. Deceased defendant No.1 filed written statement opposing the plaint. However, defendant No.2 submitted written statement at Exhibit 24 and accepted he claim of the plaintiff. She has also pleaded that she had executed sale deed under representation by Natthubai - co-owner of the plot, in favour of defendant No.1. In substance, defendant No.2 is supporting the case of the plaintiff. 4. Considering the pleadings on record, the trial court frames issues at Exhibit 39. I have seen the issues which are seven in numbers. Issue No.1 casts a burden of proof on the appellant to prove that the suit property was purchased in the name of his wife, however, with funds of the appellant. Finding recorded is against the appellant. Another important issue again placed a burden of proof on the plaintiff. That issue is as to whether original defendant no.1 purchased the suit property from defendant No.2 - wife of the appellant illegally. Finding is against the 3 appellant. Whether the plaintiff is entitled for declaration is the issue No.4 and finding is against the appellant. The trial Court held that the suit of plaintiff is maintainable while recording finding on issue No.6. Issue No.7 pertains to filing of the suit within limitation and finding is against the appellant. With the assistance of the learned counsel for the parties, I have gone through the findings recorded by the trial Court. 5. Aggrieved plaintiff was the appellant before the first appellate Court in RCA No.117 of 2005. The first appellate Court after hearing the parties, dismissed the appeal with costs on 13.3.2009. It is this judgment and decree of the first appellate Court, confirming the judgment and decree of the trial Court, is under challenge by the appellant in this Second Appeal. 6. Shri Sant, learned Advocate for the appellant took me to ground No.5 of this appeal, contending that the same is the substantial question of law requiring admission of the Second Appeal. Said ground No.5, reads as under :- "5. The learned Court below has believed the story of defendants, which is totally inconsistent and contradictory. At the same time, the witness of the plaintiff is disbelieved saying that, he is an interested witness. The learned Trial Court on its own has presumed so many things which were not at all there on record. Thus, the non-consideration of the evidence which is admissible and giving a finding on the 4 basis of evidence, which is not admissible, in both the cases, there is a miscarriage of justice. Thus, there is a substantial question of law." Shri Sant, learned Advocate also pointed out ground No. 8 raised in the memo of this Second Appeal warranting admission of the Second Appeal. 7. Shri Thorbole, learned Advocate appearing for respondent No.1/C opposed the admission of the appeal. He pointed out the findings of the trial Court. 8. In the facts and circumstances of the present case, burden of proof on the important point of payment of consideration while purchase the suit property by defendant No.2 or in the name of defendant No.2 is important. This burden is on the appellant. Shri Sant, learned Advocate categorically admits that the oral evidence of the plaintiff alone for himself is adduced before the trial Court. In other words, no other oral or documentary evidence is led on behalf of the plaintiff in support of his case. On behalf of defendants, about four witnesses have been examined. The trial Court has appreciated the evidence of these witnesses. The judgment of the first appellate Court also made a reference to appreciation of oral evidence of the witnesses examined on behalf of defendant No.1 (since deceased). Payment of money, allegedly by the appellant, for the sale deed dated 13.1.1981 is the question of fact. From 5 the record it is clear that the suit plot was erstwhile owned by one Dwarkadas. Defendant No.2 purchased the suit plot from him on 13.1.1981. Co-owner Natthubai is being referred to by both the Courts below in their judgments. Further, sale deed from defendant No.2 in favour of deceased defendant No.1 is dated 20.5.1981. Estranged and quarelling wife of plaintiff i.e. respondent No.2 is supporting the case of plaintiff by filing written statement in the trial Court. There is no surprise that husband and wife are fighting together against defendant No.1 in the court of law, apart from their matrimonial discord or affinity. Both the Courts have recorded the findings on appreciation of the material on record that payment of consideration of the document dt. 13.1.1981 could not be said to have been made by the appellant. Said finding is based on the appreciation of the evidence. Ground No.5 I have considered minutely. From the material on record, it is not possible to agree with the submission of Shri Sant, learned Advocate for the appellant. In my view, Courts below have properly appreciated the material on record and have recorded findings in favour of the legal heirs of deceased defendant No.1. It is very difficult to agree the submission of Shri Sant, learned Advocate that ground No.5 is sufficient for admission of the appeal so also setting aside the judgments and decrees of both the Courts below. In my opinion, ground No.17 was also raised in the memo of 6 appeal before the first appellate Court. However, when the matter was argued before the first appellate Court, it appears that the said ground was not argued before the first appellate Court. A specific query was put to Shri Sant, learned Advocate for the appellant to point out a reference to this ground from the judgment of the first appellate Court. I have also gone through the judgment of the first appellate Court in its entirety. Apart from this, I have considered the submissions in relation to point of limitation. In my view, in the facts and circumstances, said ground also cannot be considered to be a ground involving substantial question of law. In all and all, no substantial question of law is involved in the present Second Appeal. 9. In the result Second Appeal stands dismissed. No order as to costs. ( S.B.DESHMUKH, J.) ... akl