1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 189 OF 2010 Sudhakar S/o Deorao Dhamangaonkar .... APPELLANT V E R S U S Sham S/o Prakash Pensalwar .... RESPONDENT Mr. N.P.Patil (Jamalpurkar), Advocate for appellant. Mr. S.B.Talekar, Advocate for respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 22/11/2010 ORAL ORDER : 1. This is original defendant’s Second Appeal. 2. The present respondent/original plaintiff had filed Suit bearing Special Civil Suit No. 61 of 2002 for possession and injunction in respect of the suit property bearing Plot NO. 24 on the ground that he is the owner of the suit property on the basis of the registered Sale deed dated 27/12/1999 executed by one Balaji. The Trial Court decreed the Suit. The defendant preferred Appeal. The lower appellate Court dismissed the said Appeal vide its Judgment and decree dated 04/02/2010. The original defendant has assailed the said Judgment and decree in the present Second Appeal. 2 3. Mr. N.P. Patil (Jamalpurkar), the learned counsel for the appellant with all his persussive skills contended : (i) That the plaintiff has not claimed relief of declaration and the Suit for possession without claiming the relief of declaration is not maintainable. For the said purpose, relied on the Judgment of the Apex Court in the case of Santosh Singh and another V/s Mahant Iqbal Singh reported in ( 2000 ) 7 – SCC – 215. (ii) The defendant is the owner and possessor of the property by virtue of the registered sale deed dated 4/3/2000, which was executed by the original owner Ashok Jadhav pursuant to the agreement of sale dated 4/2/1998 and the said Sale deed dated 4/3/2000 would relate back to the date of agreement of sale. (iii) Adverse inference should have been drawn in light of the fact that the plaintiff has not stepped into witness box, but his Power of Attorney holder i.e. his brother had deposed in favour of the plaintiff and for the said purpose relied on the Judgment of the Apex Court in the case of Vidyadhar V/s Manikrao and another reported in AIR 1999 – SC – 1441. (iv) The Courts below have perversely appreciated the evidence of Ashok Jadhav in respect of agreement of sale. (v) Ashok Jadhav in his deposition has clearly stated that Balaji has got sale deed executed in his favour by putting pressure upon him and as such Balaji has no clear title. As Balaji did not have clear title, he sold the suit property to the plaintiff. (vi) The conduct of the plaintiff does not inspire confidence and it can not be said that the plaintiff has proved his case by preponderance of probabilities. 3 4. Per contra, Mr. S.B. Talekar, the learned counsel for the respondent contended that it is the case of concurrent findings of facts based on appreciation of evidence. Both the Courts below on appreciation of evidence, concluded that the agreement of sale dated 4/2/1998 is not proved and is shrouded with suspicion. The Courts have discussed the evidence in that regard and have come to the positive conclusion. According to the learned counsel, the relief of declaration was implicit in as much as the possession was claimed on the basis of title. 5. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments delivered by both the Court. 6. It is a fact that the sale deed in favour of plaintiff is executed on 27/12/1999 by Balaji, who has also entered into the witness box to prove the said sale deed. The sale deed is also proved by examination of the attesting witness to the said sale deed. No doubt, the sale deed executed by Ashok Jadhav in favour of Balaji dated 29/5/1999 is not produced on record, but said Ashok Jadhav in his deposition clearly admitted of having executed the sale deed in favour of Balaji, but, his contention was that the said sale deed was executed under pressure and coercion. There is no pleadings to that effect. As per Order VI Rule 4 of the Code of Civil Procedure, the fact of coercion, undue influence, mis-representation have to be specifically pleaded. No circumstances are brought on record regarding the manner in which coercion was employed by Balaji. 7. The defendant would succeed only if he proves the agreement of sale having been executed in his favour earlier to the sale deed executed by Ashok Jadhav in fvour of Balaji. Both the Courts on appreciation of the oral evidence, so also, the consideration of the agreement of sale, have categorically come to the conclusion that the plot number in the agreement of sale was not mentioned. The space was left blank, even the witness has admitted this fact, so also, there is difference in the measurement of the plots as shown in the agreement of sale and the sale deed. The Courts below have evaluated the evidence on record and 4 thereafter have come to the conclusion. The view taken by the Courts is a plausible view. Even in the Judgment referred by Mr. N.P.Patil, the learned counsel in the case of Vidyadhar referred supra , the Apex Court has held , “ Setting aside the finding by the High Court merely on the ground that the circumstances, which had already been considered by the lower Courts appear to suggest some other conclusion from true facts, is not permissible ”. 8. The contention that the relief of declaration is not claimed and as such the Suit itself was not maintainable, can not be sustained in view of the fact that the plaintiff had claimed possession on the basis of title. The issue to that effect was also framed by the Court. Issue No. 1 framed by the Trial Court was regarding the ownership of the plaintiff. The claim of ownership was inherent and implicit in the said Suit. As such, the same would not be fatal. Even in the Judgment in the case of Santoshsing referred supra, the Apex Court has held that as necessary averments are made in the plaint resisted in the Written Statement, issue is also framed, then no prejudice is caused if no formal prayer seeking declaration is made. 9. In light of the above concurrent findings of facts, the Second Appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 189.2010