1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 466 OF 2008 (Smt. Asha Jhonson Alekar & Anr. vs. Ramkrishna Laxman Bhagat & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 05, 2009. Heard Shri Darda, learned counsel for the appellants/ defendants and Shri Patwardhan, learned counsel for respondent No.1/ plaintiff. The suit filed by the plaintiff for cancellation of sale deed obtained by the defendants (his sisters) was dismissed and came to be decreed by the lower appellate Court. The lower appellate Court found that the story of relinquishment of their share by the sisters in ancestral house property in other area of Nagpur was not proved. The respondent contended that as they relinquished the share in ancestral house in favour of the plaintiff, sale deed of plot No. 52 was obtained in their names. The lower appellate Court has considered this aspect in para 10 of its judgment and has found that there was no pleading of any relinquishment 2 deed and no such relinquishment deed was produced on record. Shri Darda, learned counsel for the appellants (sisters) has contended that in written statement the relinquishment has been specifically pleaded and he has invited attention to para 15 of written statement. He has also invited attention to examination in chief of sister – Asha to show that said document was registered with Sub-Registrar office. He contends that in such circumstances, this Court should permit the sisters to bring said document on record as the original in possession of plaintiff was not produced by him. He states that the parties come from humble background and their pleadings should not be construed too strictly. Shri Patwardhan, learned counsel for respondent No.1 has contended that burden was upon the appellants/ sisters to plead and prove any such relinquishment deed. He points out that lower appellate Court has correctly appreciated the controversy. With the assistance of both learned counsel, I have perused the judgments and para 15 of the written statement and evidence which has come on record. The written statement does not make mention of any relinquishment deed or its 3 registration. It has only be mentioned that the sisters have relinquished their share in the property. If any written document was executed and was registered, it ought to have been pleaded and its copy could have been produced on record but that has not been done. While recording evidence of the plaintiff, such copy could have been shown to him but that exercise has not been undertaken and when the defendants led evidence, again the copy has not been produced. Even before lower appellate Court, there is no effort to produce any certified copy of relinquishment deed. The present Second Appeal thereafter has been filed in the month of November 2008 and again there is no such effort undertaken while filing appeal. The certified copy could have been procurred till then and could have been produced on record along with proper application. It is, therefore, apparent that the consideration of controversy by lower appellate Court cannot be labelled as erroneous or perverse. If the relinquishment deed was being pressed into service as a reply to suit filed by the plaintiff and to justify sale deed exclusively in their own names by the appellants/ sisters, burden was upon them to prove that document. As that has not been done, permitting the prayers of Shri Darda, learned 4 counsel for the appellants at this stage will amount to filling in lacunae. I, therefore, do not find any substantial question of law arising in the matter. Second Appeal is dismissed. However, there shall be no order as to costs. JUDGE *GS.