1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL No. 725 OF 2009 Shakuntalabai @ Chingubai W/o Vasantrao Deshpande ... Appellant. Versus Pralhad S/o Ganpati Karwade ... Respondent. -------- Shri. C.R. Deshpande, Advocate for the appellant. -------- CORAM: V.R.KINGAONKAR, J. DATE: 5th DECEMBER, 2009 PER COURT : 1) Heard. 2) The appellant is original plaintiff. She is widow. She filed suit (RCS No. 410/2006) for recovery of possession in respect of agricultural land, as described in claim clause of the plaint. It appears that she executed three sale-deeds in favour of the respondent. Her contention before 2 the Trial Court was that all the three sale- deeds were nominally executed by way of security of repayment of loans, which was advanced by the defendant. The appellant (Plaintiff) alleged that the sale-deeds were executed only to secure the repayment of which which was advanced by the defendants, but the title of the land was not passed in his favour. It was further contended that the Chairman of the Village Panchayat had intervened in the transactions. Thus, she asserted her ownership was intact, therefore, she is entitled to recover possession of the suit land. The defendant, however, alleged that he purchased the suit land in pursuance of the three sale-deeds. According to him, the plaintiff alienated the suit land in his favour, in piece meal manner, and there was no loan transaction between them. 3) Admittedly, the defendant is in possession of the suit land. Both the Courts below held that the plaintiff failed to prove that the sale-deeds nominally executed so as to 3 create securities for the repayment of loan. Mr. Deshpande, learned counsel would submit that the sale-deeds were not produced on record, and therefore, the question as regards nature of the transactions could not be determined without going to the recitals of the same. He would further submit that the sale-deeds were not proved as required under the law. He seeks to place reliance on certain observations in “ Prakash Cotton Mills Pvt. Ltd. V/s. Municipal Commissioner for Greater Bombay and another in (AIR 1982 (Bom) 387) & Mohammed Yusuf & another V/s D & another in (AIR 1968 (Bom) 112)”. The Provisions of Section 64 & 67 of the Evidence Act have been analysed in both these authorities. It has been held that without proper proof, the recitals of the document cannot be read in evidence. There is no need to consider such aspect in this Second Appeal. For, the appellant was required to prove nominal nature of the sale- deeds executed by her. She was required to establish that she had executed the sale-deeds so 4 as to create securities for the repayment of loan. It appears from the evidence on record that the appellant (Plaintiff ) examined four witnesses, namely, PW- Bandappa, PW-Venkat, PW- Vishnu, & PW-Namdev in support of her case. They supported her case. Still, however, PW-Bandappa categorically admitted that the three sale-deeds were absolute sale transactions. PW-Venkat admitted that he was not present at the time of transactions. Moreover, the evidence was adduced to show that the transactions were of mortgage by conditional sale. There is distinction between the plea of mortgage by conditional sale and the plea of nominal nature of the transactions i.e. the transactions being something other than it purports to show from the recitals of the documents. In this view of the matter, when the basic contentions of the appellant were not proved, mere fact that the original sale-deeds are not produced on record, cannot be treated as substantial question of law involved in this Second Appeal. 5 4) For the reasons afore stated and in view of “ Gurudev Kaur & others V/s. Kaki & others “ (AIR 2006 SUPREME COURT 1975), this Second Appeal is not maintainable and as such is dismissed, with no orders as to costs. (V.R. KINGAONKAR, J.) SDM/SA725.09 6