1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.684 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 25.10.2010. 1. This is plaintiff's Second Appeal. The plaintiff had filed a suit for specific performance of agreement of reconveyance, declaration and possession. The trial Court dismissed the suit. The plaintiff preferred an appeal. The appellate Court confirmed the finding of the trial Court and dismissed the appeal. The plaintiff has assailed the said judgment before this Court in Second Appeal. 2. Mr.Bachate, learned counsel for the appellant submitted that the transaction is barred in view of Section 63 of the Bombay Tenancy and Agricultural Lands Act. According to him, because of the sale of the property, the plaintiff would become landless. So also the defendant is not an agriculturist. On both these counts the said transaction of sale dated 12.3.1998 in favour of the defendant was void and illegal. He further submitted that there was oral agreement of reconveyance, wherein the plaintiff was required to pay the amount within eight years and get the property reconveyed. According to him, the evidence has been led. The witness in whose presence the said oral transaction has taken place has been examined and the same has been proved by preponderance of probabilities. 3. With the assistance of the learned counsel for the respective parties, I have gone through the judgments. The fact of execution of sale deed dated 12.3.1998 by plaintiff in favour of the defendant is not disputed. The question is whether the same was out and out sale or sale with condition of repurchase. The recitals of the said sale-deed nowhere depicts that the defendant had agreed to reconvey the property. The case of the plaintiff is an oral agreement of reconveyance. No doubt, the plaintiff can lead evidence to prove oral agreement but both the Courts on appreciation of evidence had held that the plaintiff could not prove the factum of oral agreement. It is admitted that even on the date of execution of the sale deed, the possession was delivered to the defendant. This also shows that it was a transaction of sale. 4. Regarding the other contention of Mr.Bachate, learned counsel that the transaction is hit by Section 63 of the Bombay Tenancy and Agricultural Lands Act, perusal of both the judgments and the pleadings show that plaintiff had nowhere pleaded that the defendant is not an agriculturist. As there was no pleadings to that effect, no issue in respect of the same was framed and the said issue can not be allowed to be agitated in Second Appeal. 5. For all the aforesaid reasons, I do not find any error in the judgments delivered by both the Courts, the Second Appeal being devoid of any substantial question of law is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.25.10.2010. asp/office/sa684.10