S.A.1034/2004 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 1034/2004 PRATAPSINHA S/O DASHRATHSINHA THAKUR AND OTHERS VS. SITARAM BHAGWAN PATIL TIDKE & OTHERS Mr. I.D. Maniyar h/f Mr. V.S. Panpatte, Advocate for the appellants. Respondent No.1 absent though served. Mr. A.S. Deshmukh h/f Mr. S.V. Kurundkar, Advocate for respondent Nos. 2, 3 and 7. Mr. A.A. Mukhedkar, Advocate for respondents No.4, 5 & 6. CORAM : A.V. Nirgude, J. DATED : 6th June, 2011. PER COURT: 1. Heard. 2. This appeal is filed against concurrent findings of the lower Court that the appellant could not prove his title to the suit property. The respondents are legal representatives of one Bhagwan. Bhagwan was owner of the suit plot. It is the case of the respondents that the appellant was put in possession of the suit plot as care taker. As against this, the appellant took up a stand that he had purchased the suit plot from Bhagwan through an unregistered document. Both the courts below on facts held that the appellant could not prove his title to the suit plot. The learned advocate appearing for the appellants tried to suggest that his client’s case would be covered under section 53A of the Transfer of Property Act. He tried to suggest to the Court S.A.1034/2004 2 that all the ingredients of section 53A are fulfilled in the defence of the appellant. I am afraid, this argument is not acceptable because all along the appellant did not take plea under section 53A of the Transfer of Property Act to protect his interest in the suit plot and to repel the suit filed by the legal representatives of Bhagwan. Apparently, the appellant would have and should have taken up a defence based on provisions of section 53A of Transfer of Property Act but unfortunately such plea was not taken at all. There is no whisper about principles of part performance in the written statement. The appellant came to the Court with defence that he is owner on the basis of an unregistered document. He did not come with case that Bhagwan agreed to sell the plot to him and in part performance of such agreement, Bhagwan put him in possession etc.. In absence of such plea, the case of the appellant failed in the courts below and would even fail here. There is no substantial question of law arising in this appeal. The appeal should therefore, fail. The appeal is dismissed. In view of dismissal of second appeal, Civil applications No. 7526/2004 and 12056/2005 do not survive. Both the applications stand disposed of. [A.V. NIRGUDE,J.] ts k/2011/June6/sa1034.04