1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.930 OF 2009 Vishnudas Sopanrao Patange ..Appellant V/s Sau.Damyanti Shrinivas Patange and others. ..Respondents ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Mr.S.V. Chandole holding for Mr.V. S. Sakolkar, Advocate for appellant. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ (CORAM : V.R.KINGAONKAR,J.) DATE : 14th December, 2009. PER COURT : 1. Heard Counsel. 2. The appellant is the original plaintiff. He filed suit for possession in respect of the agricultural land. The defendant no.1 is his sister­in­law whereas, the defendant no.2 is his real brother. The appellant’s case before the trial Court was that he had agreed to alienate the suit land in favour of the defendants for consideration of Rs.32,000/­ and had paid an amount of Rs.5,000/­ to them at the time of 2 agreement of sale dated 09.05.1994. It was agreed between them that the defendants shall pay remaining consideration of Rs.27,000/­ by the end of year 1995 and thereafter he will execute the sale deed. Since, the defendants failed to comply with the conditions as per the agreement, their possession became illegal. 3. The trial Court came to the conclusion that the defendants proved payment in pursuance to the agreement. The trial Court came to the conclusion that rest of the amount was paid in presence of witnesses, and the separate agreement was executed by the plaintiff and his son Bhimrao, and therefore, nothing had remained to be done by the defendants. Hence, their possession was held to be valid one under agreement of sale, which could be protected under section 53­A of the Transfer of Property Act. The Suit was therefore decreed. The First Appellate Court confirmed the decree. 4. It appears that the appellant had filed earlier suit bearing R.C.S. No.96/2003 wherein he had adopted contrary pleadings. That suit was withdrawn. 3 It is not clear whether, the leave was obtained by the appellant at the time of withdrawal of that suit, to file a fresh suit on same cause of action. 5. The Counsel would submit that the remaining payment is not duly proved. He would argue that the testimony of scriber of the document should not have been believed by the Courts below. The appreciation of evidence by the Courts below can not be regarded as substantial question of law involved in the second appeal. In this view of the matter, the present appeal is outside the scope of section 100 of the Civil Procedure Code. The Apex Court in the case of “Gurdev Kaur & others V/s V. Kaki and others” reported in AIR 2006 SC 1975 held that the error on findings of fact can not be considered in the second appeal, unless there is element of arbitrary and perversity is shown. In this view of the matter, the appeal is dismissed. (V.R.KINGAONKAR) JUDGE GAS/sa930.09