1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 898 OF 2009 Prakash s/o Shivdasappa Dargu .. APPELLANT VERSUS Uttamrao s/o Vitthalrao Dadke .. RESPONDENT Mr. B.S. Kudale, Advocate for the appellant. Mr. P.S. Agrawal, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 13 th January, 2010 PER COURT : 1 This is an appeal by original defendant raising exception to the concurrent judgments recorded by the courts below. Respondent / original plaintiff instituted Regular Civil Suit no. 33/2003 claiming specific performance of agreement and for possession of the suit property. Suit property is plot bearing no. 12 at sr. no. 24 gat no. 99 situate at village Karegaon, Tq. & Dist. Hingoli. Plaintiff claims that he has agreed to purchase 2 suit p lot for consideration of Rs.70,000/-and has advanced earnest amount of Rs.60,000/- to the defendant on 27-2-2002. It was agreed between the parties that the sale-deed would be executed on 11-12-2002 and balance of the consideration amount would be paid at the time of execution of the sale-deed. Defendant, however, inspite of issuance of notice did not perform his part of the contract and did not execute the sale-deed. As such, plaintiff was constrained to approach the court seeking relief of specific performance of contract and possession. 2 Defendant resisted the claim by filing written statement. Defendant did not admit the document of agreement to sell and contends that the same is fabricated by plaintiff. Defendant has denied the transaction between the parties and as such prayed for dismissal of the suit. 3 Trial court after recording evidence of the parties recorded finding that the plaintiff has substantiated his case and as such in view of the judgment and decree passed on 28-2-2006 decreed the suit. Judgment and decree passed by the trial court was subjected to challenge at the instance of defendant before the first appellate court by presenting Regular Civil Appeal no. 38/2006 which came to be heard and disposed of by the 3 District Judge -1, Hingoli who was pleased to dismiss the same on 28-8-2009. 4 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. It is vehemently contended by learned counsel for the appellant that the impugned transaction has been denied by the defendant and a plea of fabrication of document is raised. However, trial court has not framed specific issue in that regard. I have perused the pleadings raised by the parties. Defendant has vaguely made a statement that the document is fabricated one and the sale-deed is got executed in collusion with the notary before whom the agreement was alleged to have been executed. There are no particulars of fraud pleaded by the defendant in written statement. Trial court framed issue in respect of proof of execution of the document and has discussed the defence raised by the defendant. The objection in respect of framing of proper issue is required to be turned down for another reason that the defence raised in the written statement is vague and no particulars of fraud are stated by the defendant. Plaintiff has examined himself and one notary PW 3 in order prove the agreement. Evidence of the plaintiff coupled with the evidence of PW 3 is sufficient to record finding that the document in question has been properly proved and 4 the amount of part consideration has been parted by the plaintiff in favour of the defendant. Another objection that has been raised is in respect of vague pleadings in the plaint. It is contended that the plaintiff has not properly described the subject matter of the suit. In paragraph no. 4 of the plaint, the boundaries of the plot are noted by the plaintiff which is the subject matter of the suit. However, the place where the property is situate is not noted. However, the defendant has not disputed the contents of paragraph no. 4 of the plaint. Document namely agreement to sell was placed on record. Apart from that, defendant was aware of the fact that the suit is in respect of the property which he has purchased by getting the sale-deed executed in his favour copy of which is placed on record by the plaintiff. Description noted in the sale-deed executed in favour of the defendant matches with the description given in paragraph no. 4 of the plaint which has been admitted by the defendant. Therefore, there is no substance in the objection raised by the defendant in respect of vague description of the property noted in the plaint by the plaintiff. The courts below after assessing the evidence placed on record in its proper perspective have recorded finding that the plaintiff has established his case. Concurrent findings of fact recorded by the courts below need not be interfered with in exercise of jurisdiction under section 100 of the Code of 5 Civil Procedure. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa898.09.odt