1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.556 OF 2010 WITH CIVIL APPLICATION NO.1444 OF 2010 Sitabai Punja Nagare & Ors. .. Appellants. Vs. Sumanbai Nanajl Gote .. Respondent. Ms.Gauri Godse for the appellants. CORAM : D.B.BHOSALE, J. DATED : 27/09/2010. PC: 1. Leave to amend. Amendment to be carried out forthwith. 2. The defendants have filed this second appeal challenging the concurrent findings of fact recorded by the courts below whereby the suit filed by the respondent-plaintiff for declaration and perpetual injunction stands decreed. 3. Both the courts below after having considered the entire evidence on record have held that the plaintiff is the owner and is in possession of the suit land and decreed the suit. 4. Ms.Godse, learned counsel for the appellants submits that the sale deed dated 20.6.1984, on the basis of which the plaintiff claims ownership and possession of the suit land, was obtained from Punja Ramji Nagare, the husband of defendant no.1 – appellant, by practising fraud. She submitted that the husband of defendant no.1 S 2 – appellant was blind. This contention has been urged for the first time in this appeal. Moreover, this ground of challenge was neither raised in the first appeal nor was it urged before the courts below. She then submitted that Punja Ramji Nagare did not execute the sale deed, which submission, in my opinion, is inconsistent with her first contention, apart from the fact that this was not urged before the courts below. On the contrary, it was specifically urged before the court below that Punja Ramji Nagare was not karta or manager of the joint family and that he had no locus standi to execute the sale deed. Ms.Godse then invited my attention to the observations made by the courts below on the point of possession and submitted that the courts below have committed grave error of law in holding that the plaintiff was and is in possession of the suit land in the face of the revenue record which clearly show that possession of the suit land was with the husband of defendant no.1 and it was never delivered to the plaintiff. In short, she submitted that the revenue record clearly show that the possession was with the husband of defendant no.1 – appellant and after his demise on 2.1.1992 she continued to be in possession of the suit land. The revenue entries including the mutation entry, according to Ms.Godse, supports her contention. She then submitted that merely because the sale deed mentions that possession had been handed over does not mean that in fact it was handed over to the plaintiff. The contents of the document have not been proved by producing any other evidence 3 before the court. She submitted that the truth of contents of the document cannot be proved by merely producing the document and that the plaintiff ought to have produced some independent evidence in support of her case that she was put in possession of the suit property. In support of this contention she placed reliance upon the judgment in Om Prakash Berlia and Anr. vs. Unit Trust of India and Ors. 1983 BCI (0) 41. Lastly, she submitted that objections regarding the correction made in the sale deed dated 20.6.1984, which was raised by the defendants, was ultimately not considered by the Court below and hence on this ground also the appeal deserves to be allowed. 5. In my opinion, none of the contentions urged by Ms.Godse deserve consideration in the second appeal. She has not raised any substantial question of law deserving admission of the second appeal. As observed earlier the contention regarding fraud was not even urged before the court below, apart from the fact that there is no evidence on record on the basis of which it could be said that the signature of Punja Nagare was obtained by practising fraud. The execution of the sale deed is clearly admitted by defendant no.1. The defendant’s witness D.W.1, in her cross examination before Nayab Tahsildar, has clearly admitted that the suit land was delivered to the plaintiff and the plaintiff had been in possession and enjoyment of the suit land since ten years. In view of this admission the courts below have considered and appreciated the 4 evidence on record in proper perspective, and for the reasons recorded in the impugned judgments have rightly held that the sale deed was executed by defendant no.1 and the plaintiff was put in possession of the suit property in pursuance thereof. This conclusion, in my opinion, is recorded on the basis of the entire evidence on record and not only on the basis of the sale deed. The judgment of the Supreme Court relied upon is of no avail to the appellants. Moreover, the stand taken by the defendants that Punja Nagare had no locus to execute the sale deed also supports the case of the plaintiff. Considering that there are concurrent findings of fact recorded by the courts below and that there is sufficient material on record to substantiate those findings and further considering that no substantial question of law is raised/involved in this second appeal, it deserves to be dismissed. Order accordingly. Consequently, civil application is also disposed of. (D.B.Bhosale, J.)