1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 415 OF 1998 Balabhau S/o Abaji Mhaske, Died through his L.R.'s 1. Ansayabai W/o Balabhau Mhaske and others .. .. Appellants Versus Rambhau S/o Yamaji Dhande, Since deceased through his L.R's 1A Saraswatibai W/o Rambhau Dhande and others .. .. Respondents Shri P. D. Bachate, Advocate for the Appellants. Shri A. G. Dalal, Advocate h/f Shri V. D. Salunke, Advocate for the Respondents No. 1A to 1F. CORAM : N. D. DESHPANDE, J. DATE : 30TH NOVEMBER, 2009. ORAL ORDER : 1. Heard Shri Bachate, learned counsel for the appellant and Shri Dalal, learned counsel for the respondents, who is opposing the admission of second appeal. This second appeal is against the impugned judgment and order passed by the First Appellate Court allowing the respondents appeal against the judgment and decree passed by the Trial Court. The appellant is original plaintiff who filed a suit in the year 1989 bearing Regular Civil Suit No. 359/1989 regarding cancellation of sale deed of the 2 year 1983 i. e. sale deed bearing No. 2849 dated 24.08.1983 on the ground of fraud that the respondent/vendee failed to repay the loan of the bank, which he agreed to repay from the consideration of said sale deed. 2. Separate agreement was entered into on the same day on that point. He was permitted to lead secondary evidence and oral evidence was also given by the plaintiff. It is also pointed out that, the Trial Court in Regular Civil Suit No. 359/1989 by its judgment dated 02.05.1992 decreed the claim of appellant directing the defendant/respondent to pay the bank loan as due on the date of the sale deed. However, how much amount was due to the bank as loan to discharge the plaintiff is not mentioned in the plaint. The sale deed is registered for the consideration of Rs. 15,000/- for 03 acres of land and having delivered its possession. It is seen from the plaint that there is no mention that the plaintiff did not receive the amount and only consideration is shown is for figure sake and not for payment to plaintiff/appellant. 3. The appellant though relied on the Trial Court judgment, but it cannot be over looked that the finding to issue No. 2 of alleged fraud played by the defendant is answered in negative against the appellant. The suit is filed in the year 1989 after five years of alleged sale deed. In the mean time, the plaintiff appellant did not bother to verify or know from the bank, whether the dues were paid by the defendant or not. 3 4. Though, there is no issue of limitation, framed by both the Courts below, the limitation is the question of law. It is seen that Trial Court and also the First Appellate Court both went against the appellant on the finding of fraud played by the defendants/respondents. 5. I have gone through both these judgments i. e. both the Courts below and also refer to the authorities relied upon by the learned counsel for the appellant. Those are mentioned as below : I. AIR 1966 SUPREME COURT 902 P. L. Bapuswami v. Pattay Gounder. II. AIR 2004 SUPREME COURT 348 Shyam Singh v. Daryao Singh (dead) by L.Rs and others. III. 2005(3) Mh.L.J. 943 Vasantrao Vinayakrao Deshmukh and others Vs. Tulsabai W/o Karbhari Bondare and others IV. 2000(2) All MR 595 Shri Sayyed Jamalludin Mujawar and another Vs. Khatunbi Abdul Gani (Since deceased) represented by her legal heirs and others. 6. The civil suit has to be decided as per the pleadings and averrments in the plaint and no different case can be made out which is not pleaded. After hearing submissions of Shri Bachate, learned counsel for the appellants and Shri Dalal, learned counsel for the respondents and even on merits also no 4 case is made out for re-appreciation of the evidence which is not permitted in second appeal. No substantial question of law is also found for any other decision to be given or requires any consideration. The case is simple case for cancellation of sale deed for no consideration received by the appellant or for repayment to the concerned bank as per the parallel agreement of the same day, even after delivery of possession. Thus, case of plaintiff/appellant is not acceptable. With these observations, the second appeal stands dismissed summarily at the admission stage with no order as to costs. [ N. D. DESHPANDE, J.] bsb/Nov.09