1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 523/2007 (Smt. Kamlabai wd/o Rajaram Bangde Vs. Depak Rajaram Bangde & anr.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 12 th JUNE, 2008. Heard Shri Thomes for the appellant, and Shri G.E. Moharir for the respondents. The appellant is the original defendant. A suit was filed by the plaintiffs for declaration that the plaintiffs were the owners of the suit property which comprised of a house, and further grant of permanent injunction restraining the defendant from disturbing the peaceful possession of the plaintiffs over the suit property. The plaintiffs/ respondents are the real brothers. Present appellant claims to be the second wife of the father of the plaintiffs. According to the plaintiffs, the suit property was sold by the father of the plaintiffs to the plaintiffs by a registered sale deed dated 23/12/1988. Since the defendant was trying to interfere with the possession of the plaintiffs, a suit for declaration and permanent injunction was filed. 2 The defendant denied the claim of the plaintiffs, and pleaded that she was the wife of the father of the plaintiffs and the step mother of the plaintiffs. The defendant, however, denied that the plaintiffs were the owners of the suit house and that they had purchased the same from her husband- Rajaram on 23/12/1988. According to the defendant, she was in possession of the suit house since the date of her marriage with Rajaram and during his life time, Rajaram had executed a deed of settlement in her favour on 21/3/1979, though it was styled as a Will. The defendant, therefore, sought the dismissal of the suit. On the aforesaid pleadings of the parties, the trial Court framed the issues and after considering the evidence tendered by the parties on record, held that the plaintiffs had succeeded in proving that they had become the owners of the property in view of the registered sale deed dated 23/12/1988. The Court further held that the defendant failed to prove that she was in possession of the suit property. It was also held by the Court that the document dated 21/3/1979 was not a deed of settlement as pleaded by the defendant, but was, in fact, a Will and, therefore, the defendant could not have claimed any title to the suit property on the basis of the said document as Rajaram had already 3 sold the property to the plaintiffs by a registered sale deed dated 23/12/1988. Though the defendant had pleaded that the sale deed dated 23/12/1988 was a forged document, the Court, on appreciating the material evidence on record, held that the defendant had failed in proving so. The findings recorded by the trial Court were upheld by the first appellate Court. It is submitted on behalf of the appellant that the Courts failed to consider that the sale deed executed by Rajaram in favour of the plaintiffs on 23/12/1988 was without consideration and there were some corrections made in the sale deed dated 23/12/1988 pertaining to the date of the execution of the Will and this clearly shows that the sale deed was a tampered document. The counsel for the appellant relied on the decisions reported in (2003) 7 Supreme Court Cases 481 and A.I/R. 2004 Supreme Court 1591, to canvass that non- consideration of a material piece of evidence or non- adjudication of core issue would give rise to a substantial question of law. It is submitted on behalf of the respondents by the learned counsel that the question as to whether the consideration for the sale deed passed from the plaintiffs to Rajaram was duly considered by both the Courts and the submission of 4 the defendant on the basis of correction to the date of the execution of the Will made in the sale deed, was also considered by both the Courts before recording the concurrent findings of facts. According to the counsel for the respondents, both the Courts have recorded the findings on the basis of a proper appreciation of the material evidence on record and, therefore, they do not give rise to any substantial question of law as submitted by the counsel for the appellant. I have perused both the judgments. A perusal of the same apparently shows that both the Courts have not only considered, but discussed the material evidence on record, to record a categorical finding that the plaintiffs have proved their ownership over the suit property on the basis of the sale deed dated 23/12/1988 and the defendant had failed to prove that the sale deed dated 23/12/1988 was a fraudulent document. The Courts further held that the document dated 21/3/1979 was not a deed of settlement executed in favour of the defendant, but was a Will and, therefore, no title could pass to the defendant in pursuance thereof, in view of the fact that the property was already sold to the plaintiffs by Rajaram during his life time. It is, no doubt, true that non-adjudication of a core issue and overlooking an important piece of evidence would 5 give rise to a substantial question of law, but in this case, it did not so happen. In the instant case, both the Courts have considered the material evidence tendered by the parties on record to record the finding on the question of facts involved in the case. For the reasons aforesaid, the second appeal is dismissed with no order as to costs. JUDGE RMP