SA.379-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 379 OF 2008 Vithal Banda Nimkar & Ors. ...Appellants Vs. Jalinder Appasaheb Dhare ...Respondent *** Mr. M. A. Patil, for the Appellants. Ms. V. B. Mohite h/f V. S. Talkute, for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : JANUARY 27, 2011 P.C. 1. Heard the learned counsel appearing on behalf of appellants and respondent No.1. The appellant is original plaintiff. The appellant filed a suit for declaration that the sale-deed executed in favour of respondent No.1 is not binding on him. The said sale-deed was executed in the year 1988 whereby part of the house property was sold by the said sale-deed to respondent No.1. 2. The case of the plaintiff in the plaint was that respondent No.1 was appointed as an advocate by the plaintiffs for the purpose of SA.379-08 - 2 - making correction in the city survey record and all papers pertaining to the said property were handed over to respondent No.1 in his capacity as their advocate. According to him, in 1994 they came to know that the property was registered in the name of respondent No.1, and therefore, suit was filed by them. The trial Court dismissed the suit inter alia on the ground that the suit was barred by limitation. The appeal preferred also was dismissed. 2. Being aggrieved by the aforesaid orders, the appellants have filed the Second Appeal. The learned counsel appearing on behalf of appellant has raised following questions of law - ●Whether Courts below were right in holding that the Respondent Advocate has not committed the fraud at the time of alleged sale deed? ●Whether the learned lower Courts were right in holding that the plaintiffs have failed to produce necessary document in respect especially certified copy of Vakalatnama in the City Survey Proceeding to show that the defendant was their counsel in that proceeding therefore the sale deed was not practicing upon fraud? ●The learned lower Court admitted in his judgment that the City Survey Officer has committed mistake for giving new number to the defendant without notice to the plaintiff and they have measured the land behind back of the plaintiff, can courts below SA.379-08 - 3 - was right in holding that the City Survey Officer has done according to the law? ●The plaintiffs are the simpleton and they kept faith and belief in the respondent Advocate and therefore entire document handed over to respondent Advocate for correction of the City Survey record the blunder mistake committed by the office, the Advocate of respondent has filed Proceeding before the competent authority and the Advocate of respondent executed alleged sale deed in their favour without knowledge of the plaintiffs. Can courts below were right to ignore the said Proceeding and holding that the Advocate of respondent has not committed the fraud regarding sale deed of the plaintiff property? 3. In my view, the said grounds cannot be termed as the substantial questions of law. A concurrent finding of fact has been recorded by both the Courts below that plaintiffs were not in a position to establish that they had handed over all the papers to respondent No.1 for the purpose of making correction in the City Survey record. The Courts below have, therefore, recorded the finding that fraud has not been established by the plaintiffs. That being the position, it will not be SA.379-08 - 4 - possible for this Court to re-appreciate the evidence and substitute a new finding in the place of the finding recorded by both the Courts below. Hence, Second Appeal is dismissed. [ V. M. KANADE J.]