1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.525 OF 1998 Madhav Maruti Kadam .. Appellant. -versus Vasant Krishna Kadam and ors .. Respondents Shri. Ashok B. Tajane i/b. G. S. Gokhale, for the appellant. Shri. Vivek Salunke, i/b Shri P.B. Shah, for the respondent. CORAM: R. G. KETKAR, J DATED: 22nd July, 2009. P.C. 1. The present appeal is preferred by the original plaintiff challenging the judgment and decree dated 22nd December, l989 passed by the learned II Jt. Civil Civil Judge Junior Division, Satara, whereby it dismissed the suit instituted by the appellant for declaration that the sale deed dated 16th October, l978 executed by the original defendant No.4 Smt. Bhagubai P. Kadam in 2 favour of original defendant No.l Vasant Krishna Kadam and original defendant No.2 Vitthal Narayan Kadam, is not binding on her. The plaintiff also claimed relief of permanent injunction restraining the defendant Nos l & 2 from interfering with peaceful possession of the plaintiff. 2. Being aggrieved by the trial Court judgment and order, original plaintiff Madhav Maruti Kadam preferred appeal before learned District Judge which was dismissed on l2th August, l998. Against these two decisions, original plaintiff has preferred this second appeal. 3. Mr. Ashok Tajane, learned counsel for the appellant contended that both the Courts below committed error in holding that the plaintiff did not establish title as also the finding that he did not establish possession over the suit lands. The vendor of the plaintiff Sakharam had executed sale deed on l6th March, l959 in favour of the plaintiff and in pursuance thereof, plaintiff was put in possession. 4. As against this original defendant no.4, who had no authority to sell suit land, sold suit land to defendant 3 Nos l & 2 by sale deed dated l6th October, l978 and consequently the defendant Nos l & 2 can not derive any title. On the other Shri.Vivek Salunke, learned counsel for the respondents submitted that basically Sakharam could not have sold the properties as suit properties were mortgaged on 27th May, l93l in favour of Genu Bahiru Kadam. Sakharam is the son of said Genu. Even before period of redemption was over, Sakharam executed sale deed in favour of the plaintiff. The only remedy available to Sakharam was either to ask for sale of the property through intervention of the Court or to institute a suit for recovery mortgage money. 5. The Trial Court on appreciation of evidence on record held that the plaintiff was not in possession of the suit land. The suit lands were mortgaged by Rahibai Kondiba Kadam with Genu Kadam. Under the circumstances, Sakharam had a right to file suit for recovery of mortgaged money or for sale of the property by intervention of the Court. The Appellate Court concurred with this finding . Both the Courts have 4 recorded finding on appreciation of evidence on record. I find no infirmity in the finding recorded by the Courts below. No substantial question of law arises in the second appeal. Hence it is dismissed. (R.G. KETKAR, J)