1 sa 293.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 293 OF 2010 1. Devrao S/o Bajirao Harkare, Died through his L.R.s' 1/1 Antikabai W/o Deorao Harkare and others .. Appellants Versus Bajirao S/o Appa Khiste .. Respondent Shri M. V. Deshpande, Advocate for Appellants. CORAM : S. V. GANGAPURWALA, J. DATE : 19TH APRIL, 2011. PER COURT : . This is defendants’ second appeal. The plaintiff filed a suit for possession on the basis of title. The Trial Court decreed the suit. The defendant Nos. 1 to 3 being dissatisfied filed appeal before the District Court. The District Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. The defendant Nos. 1 to 3 assailed the said judgment in the present second appeal. 2 sa 293.10 2. Shri Deshpande, the learned counsel for appellants strenuously contents that the sale deed was executed in the year 1973. Though the sale deed contains the recitals of delivery of possession, the possession was never delivered. The said recital itself goes to show that the document was in the nature of security and not out and out sale. The parents of the plaintiff were doing money lending business and the defendant Nos. 1 and 2 had obtained hand loan of Rs. 1,000/- and for the said purpose the said document was executed. Even assuming that plaintiff does not prove the money lending business by the parents of plaintiff, still the fact that possession was never delivered to the plaintiff would substantiate the plea of defendants that the document was a nominal sale deed and was only for security purpose. Even the name of defendant No. 3 was mutated in the revenue record. 3. Shri Deshpande, further contends that even a reference was made to the Tenancy Court for consideration of the plea of the defendants being tenant since 1970, the finding on the said issue was received from the Tenancy Court at Exhibit 48. The Court could have considered the legality of the same. 4. With the assistance of the learned counsel, I have gone 3 sa 293.10 through the judgment. Both the Courts on appreciation of evidence have come to the conclusion that the plaintiffs have proved the parting of the consideration amount. The defendants have not pleaded nor proved as to when said amount of Rs. 1,000/- was taken as hand loan and the time it was repaid. The Courts on appreciation of evidence have arrived at a conclusion that the transaction was that of out and out sale. Even the defendants had not taken any step for cancellation of said sale deed, nor sought any declaration to that effect. The issue of tenancy was decided by the Tahsildar against the appellant. The same was not assailed before appropriate appellate forum. The same could not have been assailed in Civil Court. 5. The view taken by the Courts below is a possible view and is based on appreciation of evidence. 6. The second appeal cannot be entertained only on the ground that some other view also could be possible. The second appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11