1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 519 OF 2009 Motilal s/o Ramdas Gurao .. APPELLANT VERSUS Smt. Shobhabai w/o Murlidhar Kulkarni .. RESPONDENT Mr. R.S. Deshmukh, Advocate for the appellant. Mr. S.P. Brahme, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 15 th October, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment recorded by the 1 st Adhoc Additional District Judge, Dhule on 9-8-2001 in Regular Civil Appeal no. 54/1990. 2 It is contended by plaintiff that deceased husband of defendant by name Murlidhar Kulkarni had agreed to sell the property in favour of the 2 plaintiff by executing agreement to sell on 16-12-1975. Consideration amount settled was Rs.3,000/- out of which amount of Rs.2,000/- was paid towards earnest amount. It was decided between the parties that balance of consideration amount would be paid at the time of execution of the sale- deed. Husband of defendant died after execution of agreement to sell. Plaintiff persuaded the defendant to execute the sale-deed. However, defendant refused to do so. As such, plaintiff was constrained to approach the court by presenting suit bearing Regular Civil Suit no. 144/1984. 3 Defendant controverted the contentions raised by plaintiff, by filing written statement. According to defendant deceased Murlidhar was not the owner of the property but the same was owned by one Sitabai Joshi and she executed will deed and bequeathed the property to Radha Krishna Deo temple Sindkheda. According to defendant, the property is owned by the temple and Murlidhar was the priest appointed to receive income from the property. Defendant as such prays for dismissal of the suit. 4 Trial court after recording evidence of the parties recorded finding that the plaintiff has failed to establish his case and as such dismissed the suit by judgment dt. 21-12-1989. Plaintiff preferred appeal being Regular Civil 3 Appeal no. 54/1990 raising challenge to the judgment and decree passed by the trial court which came to be heard and disposed of by the 1 st Adhoc Additional District Judge, Dhule by judgment dt. 9-8-2001. First appellate court directed refund of consideration amount of Rs.2,000/- alongwith interest the rate of 6% per annum from the date of agreement till realisation of the amount. The first appellate court however refused to grant decree of specific performance in favour of the plaintiff. 5 Perused judgments recorded by both the courts below. Plaintiff or his witnesses have nowhere stated about ownership rights of deceased husband of defendant. However, defendant has placed on record document to demonstrate that the property belonged to Sitabai Joshi and she had bequeath the property by executing will deed in favour of Radha Krishna Temple. It is the contention of the appellant that the defendant has not proved the will deed alleged to have been executed by Sitabai. However, the fact remains that the plaintiff has not placed on record any evidence to show that deceased husband of the defendant was owner of the property. In these circumstances, the first appellate court was justified in granting decree only in respect of refund of consideration amount. No substantial question of law arises for consideration in the appeal. Appeal 4 therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa519.09.odt