- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.486/2003 WITH CIVILI APPLICATION NO.4781/2003 Murlidhar Madhav Jadhav. ...Appellant.. Versus Bapu Sakharam Gunjal. ...Respondent... ..... Shri S.L. Bhapkar, Advocate for appellant. Shri B.L. Pallod, Advocate for respondent. ..... CORAM: R.M. BORDE, J. DATE: 15.09.2009 PER COURT: 1] This is an appeal by original plaintiff raising objection to the impugned judgments recorded by the Courts below. The plaintiff instituted suit bearing Regular Civil Suit No.187/1986 claiming specific performance of agreement alleged to have been entered into on 23.7.1986. It is contended by the plaintiff that he had agreed to purchase land admeasuring 1 H 21 R out of Gut No.151 situated at village Bodhegaon Tq.Shevgaon Dist.Ahmednagar for consideration of Rs.3,000/-. An amount of Rs.500/- was tendered as an earnest - 2 - amount and document was got executed on a stamp paper. It is further stated by the plaintiff that he has advanced an amount of Rs.1,000/- thereafter and a separate possession receipt was got executed. The plaintiff contends that he is in possession of the land. He is ready and willing to perform his part of contract and pay balance of consideration of Rs.1,500/-. However, according to him, the defendant is not willing to perform his part of contract. As such the plaintiff has instituted the suit for claiming specific performance. 2] The defendant appeared and resisted the suit by filing written statement. According to the defendant, the nature of transaction is not in respect of sale of the agricultural property, but it is in the nature of loan transaction. According to the defendant, he has received hand loan of Rs. 1,000/- from the plaintiff and by way of security for the loan, the document has been executed in favour of the plaintiff. The property fetches the market value more than Rs.10,000/-. According to the defendant, he has repaid an amount of Rs.1,500/- back to the plaintiff. However, the plaintiff has refused to execute the document in respect of re-conveyance. According to the defendant, the suit is barred by limitation and as such he prayed for dismissal of the suit. 3] After recording the evidence of the parties, the trial Court found that the plaintiff has not established his case and as such dismissed the suit by his judgment and decree dated 31.7.1996. The plaintiff, being aggrieved by the judgment and decree passed by the trial Court, preferred an appeal, which was initially dismissed by the first appellate Court, against which the plaintiff preferred a Second Appeal in the High Court. The High Court, while allowing the second appeal, remitted the matter back to the first appellate Court for reconsideration. The appeal was again reconsidered and was decided by the Joint District Judge, Ahmednagar, who was pleased to dismiss the same by his judgment and decree dated 1.2.2003. - 3 - 4] I have perused the judgments recorded by the Courts below. It is to be noted that the plaintiff failed to place the document i.e. agreement to sell on record of the trial Court. The suit was proceeded in absence of there being document placed on record by the plaintiff. The trial Court, after recording evidence of the parties, has reached a conclusion that the nature of the transaction is in fact a loan transaction and not transaction in respect of sale of the agricultural property as contended by the plaintiff. The finding of fact recorded by the trial Court has been upheld by the first appellate Court. One of the witnesses examined by the plaintiff P.W.2 Annasaheb Zambre has in unequivocal terms admitted that the transaction entered into between the parties is in respect of re-conveyance of the land on accepting Rs.1,500/- from the defendant. Considering all the relevant circumstances, the first appellate Court has also reached a conclusion that the transaction entered into between the parties is not in respect of sale of the agricultural property, but is essentially a loan transaction. 5] The finding of fact recorded by the Courts below on appreciation of evidence need not be interfered while exercising jurisdiction u/s 100 of the Code of Civil Procedure. There is no substantial question of law involved in this appeal. The appeal stands dismissed summarily. In view of dismissal of appeal, Civil Application No.4781/2003 does not survive and hence disposed of as such. (R.M. Borde, J.) ndk/c159093