1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.595 Of 2009 With Civil Application No.8540 of 2009 Thaka S/o Jairam Pagare. ... Appellant. Versus Achut S/o Gopalrao Joshi. ... Respondent. -------- Shri. V.S. Bedre, holding for Shri. A.M. Nagarkar, for appellant. Shri. A.R. Shinde and Shri. S.N. Rodge, Advocates for respondent. -------- CORAM: R.M. BORDE, J. DATE: 20th JANUARY 2010 PER COURT : 1) Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 2 2) This is a second appeal filed by the original defendant raising exception to the judgment and decree passed by the District Judge-2, Aurangabad in Regular Civil Appeal No.102 of 2003. 3) The plaintiff instituted a suit claiming specific performance of agreement. It is the contention of the plaintiff that by virtue of execution of agreement to sell on 23-7-1992 the defendant agreed to alienate the suit land for a consideration of Rs.40,000/-. On execution of the agreement the plaintiff has parted with a sum of Rs.20,000/-. In spite of repeated requests made by the plaintiff, the defendant failed to perform his part of agreement and refused to execute sale deed as such a notice was issued to the defendant in the year 1997 calling upon him to perform his part of agreement. The defendant replied the 3 notice and disputed the agreement itself. The plaintiff as such was constrained to present the suit in the year 1998 claiming a decree for specific performance of agreement. 4) The defendant appeared and resisted the suit by filing Written Statement. The defendant has denied the suit transaction and contended that in fact the transaction is in respect of advancement of money. It is the contention of the defendant that the plaintiff has practised fraud and undue influence and got executed the deed. It is also contended that the suit was presented beyond prescribed period of limitation. 5) The trial Court after recording the evidence led by the plaintiff, delivered its judgment on 24-2-2003 and dismissed the suit. 4 6) The plaintiff, being aggrieved by the judgment and decree passed by the trial Court, preferred Regular Civil Appeal No.102 of 2003 which came to be heard and disposed of by the District Judge-2 Aurangabad. The District Judge was pleased to allow the same by judgment and decree dated 2-5-2009. I have perused the judgments delivered by both the Courts below. 7) The judgment delivered by the trial Court shall have to be termed as perverse. Admittedly the defendant was not stepped into witness box. The trial Court has recorded a finding that the suit transaction is in respect of advancement of money. The trial Court recorded a finding that the plaintiff had practised fraud in securing execution of the document. The trial Court also recorded a finding that the suit is presented beyond the 5 prescribed period of limitation. It is not controverted that the defendant failed to step into witness box and in the absence of any evidence led by the defendant much-less the details in respect of fraud and undue influence appearing in the Written Statement, the trial Court has recorded finding in favour of the defendant on the issue of execution of the deed. The finding recored by the trial Court in respect of the suit being beyond prescribed period of limitation also appears to be erroneous. The defendant has finally expressed his reluctance to perform his part of contract while replying the notice issued by the plaintiff in the year 1997. The suit is presented in the year 1998 i.e. within three years from the date of refusal by the defendant to perform his part of contract. In absence of any material placed on record before the trial Court, surprisingly finding 6 is recorded against the plaintiff in this regard. The First Appellate Court on appreciation of evidence and considering all relevant circumstances has reversed the decree passed by the trial Court. The plaintiff has led his evidence and has also proved the document in question. The evidence led by the plaintiff has not at all been controverted by the defendant. As stated earlier, there are no details given by the defendant in respect of fraud and undue influence on the part of the plaintiff. The defence in respect of transaction being of advancement of money has also not been substantiated by leading any evidence. In these circumstances it cannot be said that the decree passed by the First Appellate Court is erroneous. 8) I am convinced that the reasons recorded by the First Appellate Court are 7 proper and the First Appellate Court has adopted a reasonable view of the matter. No substantial question of law arises for consideration of the second appeal. 9) The Second Appeal No.595 of 2009, therefore, is dismissed summarily. 10) Civil Application No.8540 of 2009 does not survive, it stands dismissed. (R.M. BORDE, J.) rsl/ sa.595.09