1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 383 OF 2010 Mahadu S/o Ramji Jadhav .... APPELLANT V E R S U S Gopala S/o Shivaji Nalegaonkar & another .... RESPONDENTS ---------------------------------------------------------------------------------------------------------------- Mr. Chandole, Advocate holding for Mr. V.G.Sakolkar, Advocate for the appellant. Mr. B.S.Kudale, Advocate for respondent. ---------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 12/10/2010 ORAL ORDER : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for declaration of ownership and possession. It is the contention of the plaintiff that the sale deed dated 28/03/2000 ( Exh. 76 ) executed in favour of defendant no. 1 is a sham document. It is only nominal sale deed executed as a security. It is also his contention that defendant no. 1 illegally sold the said property in favour of defendant no. 2 vide sale deed dated 07/05/2002. The trial Court dismissed the Suit of the plaintiff. The plaintiff preferred Appeal before the District Court. The District Court also dismissed the Appeal and confirmed the finding of the trial Court. The plaintiff has assailed the said Judgment before this Court. 2 3. Mr. Chandole, the learned counsel contended that sale deed ( Exh. 76 ) was not an independent document. Along with Exh. 76, a contemporaneous document, Exh. 59 was also executed, which clearly shows that the document Exh. 76 was not an out and out sale, but the same was nominal transaction. The witnesses P.W. 3 and 4 have proved the agreement Exh. 59 and the same should have been relied upon. According to him, the Courts below have not considered the evidence in this regard and have arrived at perverse finding. 4. Per contra, Mr. Kudale, the learned counsel for the respondents submitted that both the Courts below have concurrently appreciated the evidence on record. The total evidence has been discussed and the Courts have rightly come to the conclusion that the last line on the first page of agreement Exh. 59 is subsequently written. The same is in different hand writing. The same is the case of appreciation of evidence and in this Second Appeal U/s 100 of the Code of Civil Procedure, the same would not be open to be assailed. 5. With the assistance of the learned counsel for the respective parties, I have gone through the record and the Judgments. 6. The factum of execution of sale deed (Exh. 76) is not disputed. Perusal of Exh. 59 shows that it fortifies the execution of sale deed. More over, both the Courts on appreciation of evidence and the writing of the document, have come to the conclusion that the last line on page no. 1 of Exh. 59 appears in different hand writing and is inserted later on. In such circumstances, no error can be found in the Judgment of the Courts below. The Second Appeal being sans any substantial question of law, is dismissed. However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 383.10