1 SA 180.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 180 OF 20 11 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.A.A.Khonde, Advocate holding for Mr.M.P.Kale, Advocate for the appellant. Mr.S.N.Janakwade, Advocate holding for Mr.P.R.Katneshwarkar,Advocate for the appellant .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 25/04/2011 PER COURT : 1. This is the Appeal by the original plaintiff, who had filed Suit for specific performance of contract. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. Aggrieved thereby, the plaintiff has filed the present Second Appeal. 2. Mr. Khonde, the learned counsel for the appellant strenuously contended that both the Courts have not properly appreciated the evidence 2 SA 180.2011 of the attesting witness in its correct perspective, so also failed to consider the true import of Section 22 ( C ) of the Transfer of Property Act. According to the learned counsel, the transaction was money lending transaction and the same would come within the scope of Section 58 ( C) of the Transfer of Property Act. Even the attesting witnesses have substantiated the case of the plaintiff, so also have corroborated the evidence. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Nilkantha Dhondiba Chavan since deceased by his L.R. - Anil Nilkanth Chavan and others V/s Umabai W/o Anant Desai and others reported in 2005 ( 2 ) Mh. L.J. - 8 and another Judgment of the learned Single Judge of this Court in the case of Vikram S/o Dhondu Avhale since deceased by his L.Rs. V/s Sumitrabai Wd/o Vikram Avhale and others reported in 2005 ( 2 ) Mh. L.J. - 507 and contends that even if there are two (2) separate documents, the document can be interpreted as mortgage. According to the learned counsel, even an alternate prayer for redemption was made and as such the Court could have considered the alternate prayers as is held by this Court in the case of Nilkanth V/s Umabai referred supra. 3. Per contra, Mr. Janakwade, the learned 3 SA 180.2011 counsel for the respondent submits that it is the case of appreciation of evidence. Both the Courts have concurrently on appreciation of the evidence have held that the transaction was not mortgage. It was the case of out and out sale and the plaintiff failed to prove contemporaneous document i.e. agreement to sale. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. The execution of the sale deed dated 16/6/1977 is not disputed. The bone of contention is the execution of the agreement dated 16/6/1977. The same is denied by the respondent. It is denied that the said document bears her thumb impression. In such circumstances, heavy burden lye upon the plaintiff to prove the said execution of the agreement by the defendant. The Courts below have discussed the evidence of the attesting witnesses. The scribe of the said document is not examined, whereas Bhimrao who was one of the attesting witness examined by the plaintiff states that the said agreement was executed one ( 1 ) year after the execution of the sale deed, whereas the case of the plaintiff is that both the documents were executed on one and the same day. Even the other attesting 4 SA 180.2011 witness was examined, but probably he could not remain for cross examination as he was no more. The third attesting witness to the said document was examined by the defendant. He has also expressed his ignorance about execution of any such agreement. Even in his cross examination, he has stated that his signature was obtained by scribe Mr. Sapate in his village at Kewad, Tq. Kaij, Dist. Beed. He has shown his ignorance about the execution of the said document. Both the Courts in extenso discussed the said evidence. The Courts have arrived at plausible conclusion. The Second Appeal can not be entertained only on the ground that some other view is also possible. 6. The Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and is disposed of. [ S.V. GANGAPURWALA,J. ] KNP/SA 180.2011