1 sa90.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 90 OF 2011 WITH CIVIL APPLICATION NO. 192 OF 2011 IN SECOND APPEAL NO. 90 OF 2011 Mr.Ravindra Shrikant @ Sitaram Sali & anr. ....Appellants. Vs. Mr. Prabhakar Tukaram Sali & ors. ....Respondents Mr. Amol Mhatre, Advocate for Appellants. Ms. Gauri Godse, Advocate for Respondent No. 1. CORAM:- GIRISH GODBOLE, J DATED:- AUGUST 20, 2011 P.C. 1. Heard Mr. Mhatre, Avocate for the Appellants and Ms. Gauri Godse, Advocate for Respondent No. 1. 2. The Original Plaintiffs in Special Civil Suit No. 2 of 1998, which 2 sa90.11 was a suit for declaration, possession and partition seeking a declaration that the Sale Deed dated 17/6/1998 executed by the Defendant No. 2 (father of the Plaintiffs/Appellants) in favour of the Defendant No. 1 (Step-brother of the Defendant No. 2) is null and void, alternate relief seeking partition of ½ share in the properties bearing CTS Nos. 527 and 528, possession, injunction and alternatively for grant of 1/10th share in the suit properties have filed the present Second Appeal. 3 The Vendor(father of the Appellants) was impleaded as Defendant No. 2 and supported the Plaintiffs by filing his Written Statement dated 17/7/1998 but did not file either a counter claim or adopted third party procedure as permissible in Maharashtra nor filed a separate suit for challenging the Sale Deed. The other Defendants, save and except the Defendant Nos. 1 and 4, also supported the Plaintiffs. 4 In so far as the property bearing CTS No. 528 is concerned, the Trial Court, on the basis of admissions of the Plaintiffs, has come to the conclusion that the said property was given to the Defendant No. 2 by his aunt Mirabai and was therefore, a self-acquired property and there is no serious challenge to this finding of fact. In so far as the other property 3 sa90.11 bearing CTS No. 527 is concerned, the case of the Appellants is that the same was purchased by their grand-father Tukaram from his own funds and only for convenience, the Sale Deed dated 5/11/1944 was executed in the name of his son from first wife Shrikant @ Sitaram Tukaram Sali who is Defendant No. 2. 5 Evidence has been laid in support of the said submission by relying upon the endorsement made on the certified copy of the Sale Deed at Exh. 66, also produced at Exh. 102, to show that the consideration was in fact paid by Tukaram. There is also some material on record to show that in the year 1944, the Defendant No.2 was taking education and, according to the Appellants, did not have any independent source of income so as to purchase the property bearing CTS No. 527. On behalf of the Defendant No. 1, the Will of the deceased Tukaram dated 16/11/1984 was produced and the same appears to have been marked Exh. 105. The Trial Court dismissed the suit by its Judgment and Decree dated 23/9/2005 which has been confirmed by the learned Ad-hoc District Judge-II, Raigad at Alibag by dismissing Civil Appeal No. 161 of 2005 filed by the Appellants. 6 The Trial Court has in fact considered the dispute regarding CTS 4 sa90.11 No. 527 also from the point as to whether the Sale Deed of 1944 can be held to be a document whereby the property was purchased by deceased Tukaram, benami in the favour of his son Defendant No. 2. Relying on the principles laid down by the Supreme Court in the case of Bhimsingh v/s. Khan Singh AIR 1980 SC 727 followed by the Judgment of the Calcutta High Court in the case of Smt. Urmila Desai v/s. Probodh Ghosh AIR 1986 Calcutta 383 and considering the surrounding circumstances, namely, the fact that during his life time till his death in the year 1986 Tukaram never claimed ownership of the property and even in his Will at Exh. 105 did not show the said property bearing CTS No. 527 as his property and the fact that the Defendant No.1 was shown to be staying in the said property with the permission of the Defendant No. 2 as stated in paragraph-5 of the Written Statement of the Defendant No. 2; the Trial Court has found that though the consideration had come from Tukaram, the real intention of Tukaram was to confer absolute ownership of the said property on Defendant No. 2 and it was not his intention that the Defendant No. 2 should hold the said property either for the benefit of Tukaram or for the benefit of joint family. 7 Additionally one cannot overlook the fact that the mother of the 5 sa90.11 Defendant No. 2 Radhikabai had died in the year 1928 thereafter Tukaram had married Hirabai, the mother of the Defendant No.1 and in such a situation, Tukaram might have purchased the property for the benefit of his son from the first wife. The findings of facts recorded by the Trial Court are based on correct appreciation of the pleadings and evidence, both oral and documentary, and correct principles have been applied. 8 The learned Judge of the first Appellate Court has recorded general agreement with the findings recorded by the trial Court. Though Mr. Mhatre may be justified in criticizing certain observations in paragraph-12 of the Judgment of the first Appellate Court, even ignoring the said observations, it cannot be said that the First Appellate Court has failed in its duty particularly when it has recorded general agreement with the findings of the Trial Court. 9 Thus, the finding recorded are pure findings of facts and do not give rise to any question of law. Hence, despite the strenuous efforts of the learned Advocate for the Appellants to show that a question of law arises, it is difficult to accept the said submission. Second Appeal is accordingly summarily dismissed. 6 sa90.11 10 In view of the dismissal of the Second Appeal, Civil Application No. 192 of 2011 does not survive and the same also dismissed . (GIRISH GODBOLE, J)