1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.334/2009 ( Smt. Anusayabai Dangre ..V/s.. Eknath Dhanaji Patil) ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Mr. S.V. Shirpurkar, counsel for appellant. Coram : F.M.REIS, J.. Dated : 21st January 2010. 1. This is a second appeal preferred by the appellant challenging the judgment and decree dated 6th March 2009 passed by the learned District Judge-II Buldhana dismissing the Regular Civil Appeal No.164/2004 arising out of the judgment and decree dated 21st of January 2004 passed by the 2nd Joint Civil Judge (Senior Division), Buldhana in Regular Civil Appeal No.135/1996. The appellant filed a suit for specific performance of contract and permanent injunction on the ground that a plot No.83 having Nazul Sheet No.4 situated in old Ward No.34, new Ward No.25 known as Military Ward situated at Buldhana admeasuring south-north 2 50 feet and east west 30 feet was agreed to be sold by the respondents who is a owner thereof pursuant to an agreement dated 30th of December 1997. It is the case of the appellant that the said property was agreed to be sold for a total consideration of Rs.60,000/-. After the agreement on 7th of January 1998 the appellant paid as earnest amount a sum of Rs.40,000/- to the respondent and respondent agreed to execute the sale deed of the suit property in favour of the appellant on 5/4/1999 after being paid the balance amount of Rs.20,000/-. It is also the case of the appellant that she was residing in the suit property as a tenant on the monthly rent of Rs.100/- for more than 15 to 16 years prior to the said agreement. Thereafter the appellant requested the respondent to accept the balance amount and execute the sale deed. It is further contention of the appellant that on 30th of June 1999 and on 1st of July 1999 the respondent along with his family members came to the suit property and assaulted the appellant and started removing the fencing and threatened to dispossess the appellant from the suit property. After lodging complaint to the police station, the appellant was referred for medical treatment and no further steps were taken by the police authority. It is further her case that on 3rd of June 1999 the 3 appellant issued a notice to the respondent by R.P.A.D. and called upon him to remain present at the Sub-Registrar's office for accepting the remaining amount and execute the sale deed. The respondent failed to remain present and thereafter the suit was filed for specific performance of the said agreement. The respondent filed his written statement and disputed the contention of the appellant about any agreement whereby he had agreed to sell the suit property to the appellant. The allegation that the appellant was residing in the suit property for the last 15 to 16 years as a tenant were also disputed. It is the case of the respondent that he never agreed to sell the suit property to the appellant nor he had ever received any earnest money as claimed by the appellant. It was further his contention that in June 1999 the appellant illegally took possession of the suit property and started to reside there. It was further his contention that the appellant is in illegal occupation of the suit property and she has no right to retain the same. It was further case of the respondent that the documents sought to be relied by the appellant were fabricated documents. Accordingly the respondent prayed that the suit deserves to be dismissed. 4 2. The learned trial Judge by judgment and decree dated 21st of January 2004 dismissed the suit of the appellant. While disposing the said suit the learned trial Judge came to the conclusion that the appellant was not in lawful possessor of the suit property. The contention of the appellant that she had entered into an oral agreement to purchase the suit property was also rejected on the basis of evidence on record. The learned trial Judge also held that the appellant had failed to establish that she had paid a sum of Rs.40,000/- towards earnest money. The learned trial Judge disbelieved the version of the appellant that she was in lawful possession of the suit property and it was further held that the documentary evidence sought to be relied upon by the appellant was not authentic as there was over writing in the said documents. Accordingly the suit filed by the appellants came to be dismissed. The appellants preferred a first appeal before the District Judge, Buldhana being Regular Civil Appeal No.164/2004 which came to be dismissed by judgment dated 6th of March 2009. The learned District Judge confirmed the findings of the learned trial Judge and came to the conclusion that the appellant had failed to establish the existence of the oral agreement as well as the payment of the earnest money. The 5 learned Judge came to the conclusion that the appellant was not in lawful possession of the suit property and further held that the documents sought to be relied upon by the appellant were not authentic. 3. The appellant has preferred the present second appeal challenging the said judgments passed by the Courts below. Mr. Shirpurkar, the learned counsel appearing for the appellant, submitted that the Courts below erred in coming to the conclusion that the appellant had failed to establish about the payment of the earnest money as according to him the said finding was bases on the fact that the appellant was petty worker which cannot be accepted. The learned counsel further submitted that once the possession had been established, there was no justification for the Courts below to refuse the specific performance of the agreement. He has further submitted that the findings given by the Courts below have been arrived without properly appreciating the evidence on record to the effect that the appellant was in possession of the suit property in part performance of the agreement and as such in view of the provisions of section 53-A of the Transfer of Property Act her possession is to be protected. 6 4. Having heard the learned counsels and on perusing the impugned judgment as well as the evidence on record in the present appeal, I find that there is no substantial question of law which calls for interference by this Court under section 100 of the Civil Procedure Code. Admittedly, there is no written agreement executed between the appellant and the respondent in respect of the suit property. The appellant relied upon the oral agreement to claim her right for specific performance of the agreement. The oral agreements can be established only by oral evidence on record. The appellant has miserably failed to produce any evidence to establish her claim of oral agreement. Both the Courts below on the basis of material on record and appreciating the evidence adduced by the appellant came to the conclusion that there is no agreement executed between the appellant and the respondent. These conclusions of fact which have been arrived on the basis of evidence on record cannot be interfered with by this Court in second appeal. These are concurrent findings of fact and the learned counsel could not demonstrate any perversity in such findings. 5. Next contention of the learned counsel to the effect that the Courts below have wrongly 7 taken the inference about the payment of earnest money by the appellant, I find that the Courts below have rightly come to the conclusion that the appellant had no financial means to pay a sum of Rs.40,000/-. This conclusion has been arrived at not only on the basis of the inference as sought to be contended by the learned counsel but also on the basis that the appellant had failed to produce any evidence that she had borrowed a sum of RS.20,000/- as claimed by her to show that the payment of Rs.40,000/- towards earnest money was effected. The Courts below has disbelieved the version of P.W.2 as well as the fact that the appellant had borrowed money from Sonaji Devkar. Maternal brother Pundlik who is stated to have assisted the appellant to borrow the said amount has also not been examined by the appellant. On the basis of the material on record the learned District Judge has disbelieved the story put forward by the appellant about collecting a sum of Rs.40,000/- and paying the same to the respondent on 1/7/1988. As such the contention of the learned counsel cannot be accepted as the said findings are based on evidence on record. 6. With regard to the claim of possession, both the Courts below on the basis of evidence 8 on record came to the conclusion that the documents sought to be relied upon by the appellant were fabricated. The Courts below found that there was over writing in the tax receipt and as such disbelieved the version of the appellant that she was in lawful possession of the suit property. The Courts below found that tax receipt produced by the respondents disproved the receipt sought to be relied upon by the appellant. On the basis of the appreciation of the evidence the Courts below came to the conclusion that the appellants were not entitled for any reliefs and the claim of the appellants that she was in lawful possession of the suit property came to be rejected. As such the said contention of the learned counsel has no substance and no infirmity has been shown thereto. 7. With regard to claim of the appellant that she was in possession of the suit property in part performance of the agreement in view of section 53-A of the Transfer of Property Act, the learned District Judge has relied upon the judgment in the case of V.R. Sudhakarrao and others V/s. T.V. Kameswari 2007 (6) S.C.C. 650 wherein the Apex Court held that in case of a oral agreement of sale the defence of section 53-A of the Transfer of Property Act is not 9 available to a party who alleges to have been in possession of the property. In view of the said findings there is no substance in the contention of the learned counsel of the appellant to the effect that the appellant is in possession of the suit property in part performance of the agreement for sale. 8. This Court in the judgment reported in 2008 (4) Mh.L.J. 83 (Harishchandra Ramchandra Dhakate V/s. Santosh Ramchandra Palthe and others) has held that when the Courts below have come to the conclusion that there was no agreement between the parties the concurrent findings of fact to that effect cannot be interfered with. Such findings being the concurrent findings of fact cannot be interfered with in second appeal as no substantial question of law arise. On perusal of the record and impugned judgments, I find that the Courts below have on appreciation of the evidence come to the conclusion that there is no agreement executed between the appellant and the respondents. The claim of the appellant that she had paid earnest money were also rejected on the basis of the evidence. This Court cannot re-appreciate the evidence on record under section 100 of the Civil Procedure Code. 10 9. The Apex Court in 1999 (7) S.C.C. 303 in the case of Ram Kumar Agrawal V/s. Thawar Day has held that under section 100 of the Civil Procedure Code (as amended in 1976) the interference of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial question of law. Interference with finding of fact is not warranted if, it involves re-appreciation of evidence. 10. In view of the above, I find that there is no substantial question of law which arise in the present appeal and as such the above appeal stands summarily dismissed. Judge. Tambaskar.