1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR First Appeal No. 215 of 2007 Sheshrao Dhole & Ano. Vs. Kusum Dattuji Gurav & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri R. L. Khapre Adv. for appellant. Shri M. S. Gupta Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 3 rd April, 2008. Heard counsel for the appellants and the respondents. This appeal is filed by the original defendants who were unsuccessful in both the Courts below. Plaintiffs had instituted a suit for declaration and injunction in respect of open land fenced with tin shed and he 2 claimed to be in possession of the said land exclusively. He also claimed the right over the well. It was the contention of the plaintiffs that defendant No.1 who was a tenant in the other portion of the house was obstructing the plaintiffs from erecting a tin shed on the said land which is a part and parcel of the house purchased by the plaintiffs. The defendant No.2 also obstructed the construction sought to be made by the plaintiffs. The plaintiffs, therefore instituted a suit for declaration and injunction. Plaintiffs claim to have purchased the suit property from one Ganthade by registered sale deed dated 01.10.1982. Defendant No.1 did not contest the suit. Defendant No.2 contested the suit filed by the plaintiff on the ground that the vendor of the plaintiffs had already entered into an 3 agreement of the sale of the property in question with the defendant No. 2 in 1982 itself. He contended that there after the vendor of the plaintiff had executed a sale deed in his favour in 1988. The next contention that was raised by the defendant No.2 was that transaction between the vendor of the plaintiffs and the plaintiffs was one of loan and it did not transfer any title in favour of the plaintiffs. The learned Judge of the trial Court found that the contention of the defendants that there was loan transaction between plaintiffs and vendor was not correct. He found that since the sale deed of the plaintiffs was prior in time the sale deed in favour of the defendants did not pass any title in his favour and holding so he decreed the suit. Defendants preferred an appeal 4 before the District Judge. The District Judge concurred with the finding of the trial Court and dismissed the appeal. Learned counsel for the appellants mainly raised two grounds before me. First he contended that transaction between the plaintiffs and his vendor was that of a loan and therefore no title passed in favour of the plaintiffs. Question as to whether the title passed in favour of plaintiffs by a sale deed of 1982 has been decided by the Courts below. There are two concurrent finding of fact and that the sale deed in favour of the plaintiffs did convey the title in him and there was no loan transaction. Since the Courts have found that sale deed of the plaintiffs is prior in time, vendor of the defendant did not have a sellable title in him so as to convey any title to defendant No. 2. It was rightly held by the 5 Courts below that defendant No. 2 did not get any title at all. It was contended further that plaintiffs have failed to prove the sale deed inasmuch as he did not examine his vendor. Shri Khapre learned counsel submitted that the vendor himself should have been examined in order to prove the sale deed and examination of an attesting witness is not enough. In the instant case plaintiff has examined himself and proved the sale deed. Since plaintiff was one of the party to the sale deed, he could very well prove the sale deed. There was no need to examine the executant of the sale deed i. e. the vendor. Next question that was raised by Shri Khapre learned counsel for the appellant was that defendant was in possession of the property under part performance contract 6 and he cannot be evicted at all since the vendor of the plaintiffs is the same person who had put the defendant alledgely in possession of the suit property. He submitted that therefore under Section 53-A of the Transfer of Property Act defendants possession has to be protected. The argument has no force. Section 53-A of the Transfer of Property Act cannot at all apply in the instant case since the sale deed has already been executed in favour of the defendants in the year 1988. There is no question of protecting the possession as alleged under Section 53-A of the Transfer of Property Act. Further more it appears to me from the Memo of Appeal filed in the first Court that there is no specific ground raised in the Memo of Appeal that defendant was entitled to protection under Section 53-A of the Transfer of Property Act. 7 On both these grounds I see no substance in the contention. The third ground that was raised by Shri Khapre was that plaintiffs should have sought a relief of possession and simple suit for declaration was not maintainable. In the instant case plaintiff has sought further relief of injunction, suit is not simplicitor for declaration. Further the plaintiff has claimed himself to be in possession of the property and when he claimed to be in possession of property it was not necessary for the plaintiff to have claimed relief of possession. I, therefore, find that there is no substantial question of law involved in the appeal. Appeal is dismissed in limine. JUDGE svk