1 SA 861.2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.861 OF 2006 Pushpabai W/o Arjun Chidrewar .... APPELLANT V E R S U S Shaikh Ahemad S/o Shaikh Mahtab (Died) Through L.Rs. .... RESPONDENTS Mr.V.D.Gunale ,Advocate holding for Mr. S.G.Rudrawar, Advocate for the appellant. Mr.S.P.Shah, Advocate for respondent no. 1-A to 1-F. CORAM : S.V. GANGAPURWALA, J. DATE : 14/03/2011 ORAL ORDER : 1. Heard learned counsel for the respective parties. 2. This is defendant’s Second Appeal. The plaintiff had filed Suit for declaration and injunction. The trial Court decreed the Suit. The defendant preferred Appeal. The appellate Court dismissed Appeal confirming the Judgment and decree passed by the trial Court. The defendant has assailed the said Judgment and decree in the present Second Appeal. 2 SA 861.2006 3. Mr. V.D.Gunale, the learned counsel holding for Mr. S.G.Rudrawar, the learned counsel for the appellant submits that the Court below have committed an error in not relying on the registered instrument of sale in favour of the present appellant in the year 1950 as against an unregistered document in favour of the present respondent of the year 1917. According to the learned counsel, the registered document will prevail over an unregistered document. The learned counsel further contends that even the evidence was led to prove that there is a tenant over the said property by name Chaus, running floor mill. This aspect has not been considered by the Court below. The learned counsel submits that even permission was granted for construction in favour of the appellant. All these aspects go to show the plaintiff’s right , title and possession over the suit property. According to the learned counsel, the Court below have perversely appreciated the evidence giving rise to the substantial question of law. 4. Mr. S.P.Shah, the learned counsel for the original plaintiff submits that the respondent has proved the sale deed of the year 1917. The same was for Rs.50/- and it did not require registration. The learned counsel further submits that even P.W. 2 has been examined, who has proved the possession. A son of the attesting witness of the sale deed of the 3 SA 861.2006 year 1017 has also been examined and he has deposed about the signatures. The learned counsel further contends that the permission in favour of the present appellant is during the pendency of the Suit and the defendant has not proved his sale deed. 5. With the assistance of the learned counsel, I have gone through the Judgments delivered by both the Courts. 6. The registered document will prevail over an unregistered document if the document which is unregistered is also compulsorily required to be registered. When the document is not required to be registered by law, the said analogy would not apply. The present appellant has not been in a position to prove the sale deed executed in his favour in the year 1950 as no witnesses were examined nor any one was examined to prove the signatures or the contents. It is a fact that the permission was obtained by the present appellant during the pendency of the Suit. The Courts below have also observed that the construction permission was granted in favour of the plaintiff vide Exh. 16 on appreciation of evidence. The defendant contends that the same was in respect of the house and not the suit property, but the Court below have come to the conclusion that the same was in respect of the suit property. 4 SA 861.2006 7. The Court below on appreciation of evidence have arrived at possible and plausible conclusion. It can not be said that the appreciation of evidence is perverse. In light of the same, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 861.2006