1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.840 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM: P.R.BORKAR, J. Date : March 29, 2010 1. Heard Shri A.M. Gaikwad, Advocate for the appellant and Shri Vivek Bhavthankar Advocate for Respondent No. 1. Respondent No.2 deleted as per order dated 5.2.2010. 2. This second appeal is filed by original defendant against whom the trial court so also the first appellate court respectively had issued and confirmed the decree of perpetual injunction. 3. Briefly stated, it is the case of Respondent No.1-Plaintiff that by two sale deeds (Exhibits 85 and 87), he had purchased two lands i.e. Gat No.279 admeasuring 63 R. for Rs.4000/= and 2 Gat No. 275 admeasuring 74 Are for Rs. 6000/= from the husband of original defendant-appellant. The case of the plaintiff-respondent is that he is in possession of the suit properties purchased by him by virtue of sale deeds and defendant is illegally obstructing his possession. He, therefore, filed suit for perpetual injunction. 4. Defence of the appellant-defendant is that the sale deeds were not to be acted upon and it was merely a loan transaction and the amounts were already repaid to the plaintiff. However both, trial court and the first appellate court, did not believe the defense. Admittedly, no suit for declaration that the sale deed were not to be acted upon or for re-conveyance of the properties was ever filed by the appellant-defendant after the sale deeds in 1986 and 1987. 5. So far as possession is concerned, no doubt, appellant-defendant has led 3 certain evidence. However, detail reasons are given by both the courts below to disbelieve evidence on that point. So far Shrirang Maruti (PW-7), who is talathi and said to be independent witness, is concerned, his evidence is discussed in paragraph 12 of the judgment of the first appellate court. According to this witness, on 4.4.1993 he prepared spot Nanchang. However, in his cross - examination this witness has admitted that he conducted spot Nanchang without notice to the owners whose names are recorded in the revenue record. He also stated that cotton and tur crops, which were kharip crops, were taken. But, the court observed that when panchanama was drawn in the month of April, it was Rubbi season. Apart from that, plaintiff - respondent had taken objection to the said Panchanama despite which, name of Defendant- appellant Mangala was entered in the revenue record. Therefore, the court did not believe the said entry which was also not 4 certified by Naib Tahsildar and observed that possession Panchanama Exh.22 has no evidential value. 6. After going through the entire record, it appears that immediately after sale-deeds, mutation was sanctioned in the name of the plaintiff-respondent. Whether the defendant-appellant or plaintiff- appellant is in possession of the suit property is necessarily a question of fact on which there are concurrent findings. No perversity in the said findings is pointed out. No question of law as such arises. 7. It is argued that the nature of the sale-deeds may be a question of law. However, no declaration of title is sought by the defendant-appellant. The sale deeds are mainly referred as source of title by the plaintiff- respondent. 5 8. Not being satisfied that this is a case involving any substantial question of law, this second appeal stands dismissed at the stage of admission. 9. Appeal disposed of. pend/sa840.09 (P.R.BORKAR, J.)