1 S.A. No. 274 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.274 OF 2010 Sakharbai W/o Indarsingh More .. APPELLANT VERSUS Ramrao Dagdu Jadhav ...RESPONDENT ... Shri M.M. Joshi, Advocate for the appellant CORAM : S.V. GANGAPURWALA, J. DATE : 29th November, 2010. PER COURT : This is plaintiffs Second Appeal. The plaintiff initially filed a suit for declaration regarding the sale-deed executed by defendant No. 2 in favour of defendant No. 1 and for injunction, subsequently amended the plaint and claimed possession of 1 Acre and 10 Guntha land on the ground that the plaintiff is dispossessed during the pendency of the suit. The Trial Court dismissed the suit. The plaintiff preferred an appeal, the appellate Court also dismissed the 2 S.A. No. 274 of 2010 appeal. The plaintiff has assailed the said Judgment and Decree in the present Second Appeal. 2. Shri Joshi, learned Counsel for the appellant submitted that the Trial Court interpreted the document dated 25th March, 1991, as a document of usufructory mortgage, and on that basis has concluded that the plaintiff is not entitled for possession. The lower Appellate court held the said document as agreement of sale. According to the learned Counsel the interpretation of document dated 25th March, 1991 involves substantial question of law. 3. The learned Counsel further submitted that the appellate Court has delivered the Judgment on the premise that the suit is for injunction simplictor, whereas the plaintiff had claimed the relief of possession. 4. Shri Joshi, learned Counsel further submitted that it has been held by the Courts below that plaintiff was in possession of the property pursuant to the agreement of sale dated 3 S.A. No. 274 of 2010 25th March, 1991. The law presumes in favour of continuity of possession and without proof of actual dispossession, the Defendant NO. 1 could not have been said to be in possession on the date of suit. Shri Joshi further submitted that the appellant is entitled for protection under Section 53-A of the Transfer of Property Act. 5. No doubt the Trial Court has gone on premise that the agreement of sale dated 25th March, 1991 is a document of usufructory mortgage. But the lower appellate Court on appreciation of the said document has held the said document to be an agreement of sale i.e. the case put-forth by the plaintiff. 6. Even accepting the case of the plaintiff, that the said document is an agreement of sale. Still it has to be taken into consideration that the defendant No. 2 has sold the Gut No. 203, admeasuring 2 Acres 10 Guthas to the defendant No. 1 by registered sale deed dated 7th September, 1994 i.e. prior to Bharna Pavti dated 19th September, 1994 executed in favour of plaintiff. The sale-deed dated 7th September, 1994 4 S.A. No. 274 of 2010 executed in favour of defendant NO. 1 was preceded by an application before the competent authority seeking permission to sale the said property of the defendant No. 1. The plaintiff was given notice of the said proceedings. The plaintiff appeared in the said proceedings, raised an objection, the said objection was also decided, and thereafter, the sale-deed came to be executed. This fact shows that even in 1992 the plaintiff was aware of the transaction being entered between the defendant NO. 2 and defendant No. 1. Both the Courts on appreciation of oral evidence, so also documentary evidence had concluded that defendant No. 1 was in possession of the suit property on the date of institution of the suit. The plaintiff had not filed the suit for specific performance of contract on the basis of said agreement even though in the year, 1992 the plaintiff was aware of the transaction between defendant Nos. 1 & 2. The plaintiff had contended that on 19th September 1994, the defendant No. 2 has accepted further Rs. 3,000/-, pursuant to the agreement of sale dated 25th March, 1991. On 19th September, 1994 the defendant 5 S.A. No. 274 of 2010 No. 2 had no right,title or interest in the suit property as vide sale-deed dated 7th September, 1994 he had transfered the ownership to defendant No. 1. 7. In the light of the concurrent finding that on the date of the suit the plaintiff was not in possession of the suit property Section 53-A could not be invoked. 8. As the plaintiff is not entitled for protection under Section 53-A and has not claimed any relief for specific performance, then it is im-material as to whether any agreement in the year 1991 was entered between defendant Nos. 1 & 2. 9. In the light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second 6 S.A. No. 274 of 2010 Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA,J] SDM* 274.10SA/291110