1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APEPAL NO.323 OF 2010 JANRAO DALVI ..VS.. VISHNAWATH DHOTE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 23 /7/2010 Heard Shri Deopujari, the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff seeking a declaration that the sale deed executed in favour of the defendant by the plaintiff on 21.1.1994 was null and void and not binding on the plaintiff. The plaintiff claimed to be the owner of 2.59 H.R. of land. According to the plaintiff he was in need of loan and therefore he secured the same from the defendant, but the defendant obtained a sale deed of one hectare land belonging to the plaintiff towards security for the advancement of the loan. It is the case of the plaintiff that on 31.9.1994, the principal amount of Rs.15,000/- was paid to the defendant, but the defendant refused to re-convey the property to the plaintiff because the interest on the said amount was not paid. It is the case of the plaintiff that on 31.9.1994, a re-conveyance deed was executed by the defendant stating therein that he would re-convey the suit property to the plaintiff on receipt of interest. However, according to the plaintiff the defendant had in the month of June 1994 issued a notice / communication to the plaintiff 2 stating therein that he was in possession of the suit property and the plaintiff should not disturb his possession. This notice was the cause for filing of the instant suit by the plaintiff for the aforesaid declaration. Initially the plaintiff had not sought possession of the suit property, but later on a prayer for possession was also made. The defendant denied the claim of the plaintiff and also denied that the sale deed dated 21.1.1994 was executed towards the security of the loan of Rs.15000/-. The defendant specifically denied that the plaintiff had repaid the sum of Rs.15,000/- to the defendant and the defendant had executed a re-conveyance deed on 31.9.1994. The defendant pleaded that that the document dated 31.9.1994 was a bogus document as it did not bare the signature of the defendant. The defendant sought for the dismissal of the suit. The trial court on an appreciation of the evidence on record, came to a conclusion that the defendant succeeded in proving that the sale deed dated 21.1.1994 reflected a sale transaction and was not a loan transaction as pleaded by the plaintiff. The trial court held that the plaintiff failed to prove that the suit property was mortgaged with the defendant as a security for the loan amount. The trial court held that the plaintiff was not entitled to a declaration that the registered sale deed dated 21.1.1994 was null and void in view of the provisions of section 58(c) of the Transfer of Property Act. The trial court dismissed the suit of the plaintiff. The first appellate court on re-appreciation of the 3 evidence on record held that the trial court was justified in dismissing the suit of the plaintiff as the defendant had succeeded in proving that the sale deed dated 21.1.1994 was a valid document and the plaintiff had failed to prove that it was executed towards the security of the loan amount of Rs.15000/-. The first appellate court held that the alleged re-conveyance deed dated 31.5.1994 was a forged document and was obtained by the plaintiff by practicing fraud. While recording this finding, the first appellate court relied on the evidence of the hand writing expert Shri Athlye and discarded the expert evidence of Shri Kotwal who was examined on behalf of the plaintiff. The first appellate court rightly held that the trial court wa snot justified in holding that the re-conveyance deed dated 31.5.1994 was signed by the defendant, especially when the plaintiff had examined Shri Kotwal who had cross- examined the handwriting expert Shri Athlye with a view to secure a different opinion from the one expressed by Shri Athlye. All the other findings recorded by the trial court in favour of the defendant were confirmed by the first appellate court. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE SMP.