-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.752 OF 2005 APPEAL NO.752 OF 2005 APPEAL NO.752 OF 2005 Gulabchand Babulal Jain ...Appellant vs. Trimbak Mahipat Pawar ...Respondent Mr.Kishor Patil h/f Mr.P.N.Joshi for the Appellant Mr.Anilkumar Patil for the Respondent. CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : JANUARY 23,2008 : JANUARY 23,2008 : JANUARY 23,2008 P.C.: P.C.: P.C.: 1. Heard learned Advocate for the Appellant. The Appellant is the original plaintiff. The Appellant filed a suit alleging that the Respondent-defendant was a trespasser. The defence of the Respondent was that the Appellant has executed an agreement for sale on 12th January 1973 and that the Respondent was placed in possession of the suit property. The case of the Respondent was that initially an earnest money of Rs.5,000/- was paid to the Appellant and later on balance consideration of Rs.3,500/- was paid. The contention of the Respondent-defendant was that the Appellant was not entitled to possession as the Respondent will be entitled to protection under section 53-A of the Transfer of Property Act,1882. The case of the Appellant was of denial of execution of the Agreement. The trial court decreed the suit. While passing the decree, the trial court recorded a finding that the Respondent has proved that he had paid a sum of Rs.5,000/- to -2- the Appellant and in token of the receipt of that amount, the Appellant executed an ‘Isar Pavti’ (agreement for sale). The trial court, however, held that the Respondent has lost his right to enforce the suit agreement specifically as a result of bar of limitation. The learned trial Judge held that the agreement amounts to transfer which is hit by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 2. The Appellate Court has set aside the decree for possession by holding that the agreement will not be hit by the said Act of 1947 as the agreement does not create any interest in view of section 54 of the Transfer of property Act,1882. The Appellate Court also held that as the Respondent had paid entire consideration under the agreement for sale and was placed in possession of the suit property under the agreement for sale, the Respondent was entitled to protect his possession under section 53-A of the said Act of 1882. 3. The submission of the learned Advocate for the Appellant is that the Appellate Court has committed an error by relying upon the opinion of the hand writing expert as the hand writing expert’s opinion is never conclusive. He submitted that there was no evidence of execution of the agreement by the Appellant. He submitted that the learned Appellate Court -3- could not have protected the possession of the Respondent under section 53-A of the said Act of 1882. 4. I have carefully considered the submissions. The Appellate Court has not only considered the opinion and evidence of the handwriting expert employed by the State Government but he has also considered the evidence of the Respondent and the witness No.2 examined by the Respondent to prove the execution of the agreement by the Appellant. After considering the cross examination of the handwriting expert, the Appellate Court found that the opinion of the expert was relevant which supports the case made out by the Respondent and his witness regarding execution of the agreement by the Appellant. In so far as the execution of the agreement by the Appellant is concerned, there are concurrent findings of fact. There is no reason to interfere with the said finding of fact. 5. Once the agreement for sale is established and it is shown that the Respondent was placed in possession under the agreement for sale and has paid the entire consideration, protection under section 53-A of the said Act of 1882 could not have been denied to the Respondent only on the ground that the suit for specific performance on the basis of the suit agreement was barred by limitation. The law in this behalf is very well settled. -4- 6. No substantial question of law arises. Second Appeal is accordingly dismissed with no order as to costs. JUDGE JUDGE JUDGE