1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 31 OF 2007 Achut S/o Devidasrao Thete, age 66 years, Occu. Agriculture, R/o Jeba Pimpri, Tq. and Dist. Beed. APPELLANTS VERSUS Hanumant S/o Dattatraya Bhingare, Age 76 years, Occu. Agriculture, R/o Khaaswadi, Tq. Kallamb, District Osmanabad .. RESPONDENT ... Shri P.M. Shah, Sr. Counsel h/f P.S. Shendurnikar Advocate for appellant Smt. M.A. Kulkarni, Advocate for respondent CORAM :- S.V. GANGAPURWALA, J. DATE : 2nd SEPTEMBER, 2010. ORAL JUDGMENT :- 1. The present appellant is the original plaintiff, had filed suit for redemption of mortgage and in alternative for execution of registered sale-deed in favour of the plaintiff. 2 2. The plaintiff was the original owner of the suit property. He had executed registered sale-deed on 07th June, 1984 to the present respondent, for a consideration of Rs. 15,000/-. It is the case of the plaintiff, that on the same day the document Exh. 32 was executed The same was an agreement of sale to reconvey the property in favour of the plaintiff. On the same day, Exh. 47 was executed, which narrated about the culmination of the transaction between the parties. 3. The Trial Court, after scrutinizing the evidence oral and documentary, dismissed the suit of the plaintiff. The plaintiff, preferred an appeal. The appellate Court, confirmed the finding of the Trial Court, and also dismissed the appeal. The appellate Court, recorded the finding that the transaction dated 7th June,1984 is not a mortgage, and further the defendant did not agree to reconvey the suit property on payment of Rs. 16,000/-. 3 4. The appellant has assailed the said Judgment before this Court. Shri P.M. Shah, the learned Senior Counsel, canvassed that the Courts below have not properly construed the nature of transactions between the parties. The recitals of the agreement belies the theory of the defendant. The learned Sr. Counsel also submitted that even if it is accepted that the said registered sale-deed denotes the transactions of sale, still in view of contemporaneous document i.e. Exh. 32, The plaintiff is entitled for reconveyance of the said property. According to him, there was no reason to disbelieve the evidence of the independent witness i.e. of Advocate Shri Thigale. According to him, the Courts below have not appreciated his evidence in its correct perspective. According to him, as both the parties reposed the confidence in Adv. Thigle the agreement was entrusted with him. He was author of all the agreements and he has stated true and correct facts before the Court. There was no reason to disbelieve his statement. 5. Smt. Kulkarni, learned Counsel for the 4 respondent, submitted that both the Courts on appreciation of evidence have concurrently held that there was no contemporaneous documents executed, and the plaintiff has misused the said document Exh. 32. In fact, Exh. 47 depicts the true state of affairs, between the parties. This Court would not interfere, in the concurrent finding of fact under Section 100 of Civil Procedure Code. 6. The Courts below, on consideration of oral and documentary evidence have concurrently held that the plaintiff is not in a position, to prove a separate agreement. They have also held that the plaintiff is guilty of suppression of document i.e. Exh. 47. When the plaintiff came with the case, that registered sale-deed was accompanied with the contemporaneous documents, then in such circumstances, the said transaction cannot be that of mortgage. 7. The Courts below have considered that plaintiff failed to prove contemporaneous document of agreement of sale. Moreover, relief 5 of specific performance is a discretionary relief. There was nothing on record to show that the plaintiff has proved his case. Even the pleadings of the plaintiff shows that after 1984, for the first time in the year 1996 he approached the defendant with the said amount. The relief of specific performance, being a discretionary relief and both the Courts have not accepted the case of the plaintiff. I do not feel that any case is made out for interference under Section 100 of Civil Procedure Code. 8. The Courts below have commented upon the evidence of Advocate Shri Thigale. The evidence may not inspire confidence, in the mind of the Court. But that could not ipso-facto prove to be false evidence. Comments on the said evidence, is unnecessary and the said observations recorded against Advocate Shri Thingale, in para No. 32 of the Appellate Court Judgment are expunged. 9. In the light of above, no substantial question of law is involved in the Second Appeal. 6 As such, the Second Appeal is dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA,J] SDM*31.07SA