( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 586 OF 2009 Prakash s/o Jagannath Shete APPELLANT VERSUS Jamunabai w/o Maruti Shete Since deceased, by L.Rs. 1. Navnath Mallikarajun Shete Since deceased, suit abated against him. 2. Laxman Malikarjun Shete Since deceased, abated against him. 3. Uttam Mallikarjun Shete and others. RESPONDENTS ..... Mr. V.S. Tanwade, advocate for the appellant. Mr. R.V. Naiknavare, advocate for respondents No. 3 and 6. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 2nd December, 2009] PER COURT : 1. Heard counsel for the parties. 2. The appellant is original defendant. The plaintiffs filed suit (R.C.S. No. 178/1979) for recovery of possession in respect of agricultural land bearing ( 2 ) Survey No. 109/3/2. Admittedly, one Maroti was the owner of the suit land. In his lifetime, he had executed document styled as “batai-patra” on 24-02-1976 in favour of the defendant, whereunder the suit land was given to him for cultivation till 27-03-1979. The plaintiff’s case before the trial Court was that after the stipulated period, the defendant did not restore possession of the suit land to them. According to the defendant, subsequently on 17-02-1978, an unregistered document was executed by deceased Maroti i.e. husband of deceased plaintiff No.1, whereby his possession was continued. At the relevant time, Maroti had incurred Rs. 5000/- to meet out his medical expenditure. The defendant contended further that he was tenant in possession of the suit land. 3. The tenancy issue was decided against the defendant (appellant) by the competent Tenancy Tribunal. The trial Court held that execution of un-registered agreement dated 17-02-1978 was not duly proved nor it was proved that the appellant had given Rs. 5000/- to deceased Maroti to meet out medical expenditure required ( 3 ) by the latter. Consequently, the suit came to be decreed. The first Appellate Court confirmed the findings of the trial Court. 4. Mr. Tanawade would submit that without repayment of Rs. 5000/-, the decree for restoration of possession could not have been granted. He would submit that execution of the unregistered agreement dated 17-02-1978 is duly proved by examining son of deceased attesting witness and, therefore, the impugned judgements are unsustainable. 5. It is to be noted that both the Courts, on basis of appreciation of evidence, concurrently held that the appellant failed to prove payment of Rs. 5000/- to deceased Maroti and due execution of the agreement dated 17-02-1978. The nature of so called agreement would show that it was allegedly brought about to ensure further registered document and batai-patra. In other words, it was allegedly unexecuted agreement and could not have been regarded as an executed contract. In any case, having regard to concurrent findings based on ( 4 ) appreciation of evidence tendered by the parties, I find it difficult to entertain the second appeal in as much as it does not involve any substantial question of law as such, in view of “Gurdev Kaur & others v. Kaki & others” (AIR 2006 S.C. 1975). The second appeal is, therefore, dismissed. No costs. 6. In view of dismissal of the second appeal, the civil application No. 8380/2009 does not survive and hence, stands dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/sa586-09