1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 101/2010 (Ishwar Chhannu Ambole VERSUS Shyamsunder Hemraj Gidwani (Dead) thr. Yogesh Shyamsunder Gidwani & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.S. Kshirsagar, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 28, 2010 . Heard. The appellant is the original defendant no.1. a suit was filed by the plaintiff for possession of the suit property which consisted of a plot with a house standing thereon. It was the case of the plaintiff that the plaintiff was in possession of the suit property after he purchased it from defendant no.2 vide registered sale-deed dated 10th of October, 1986. It was pleaded by the plaintiff that the defendant no.1 illegally entered into the suit property and, hence, the suit for possession was filed. The defendant no.1 filed the written statement and denied the claim of the plaintiff. According to the defendant no.1, the defendant no.3, the original owner of the property and father of the defendant no.2 had executed an agreement 2 styled as ‘Bayanapatra’ agreeing to sell the suit property to the defendant no.1. It was pleaded that the sale-deed dated 10th of October, 1986 was a fraudulent document executed by the defendant no.2 in collusion with the defendant no.3. The defendant no.1 sought for the dismissal of the suit. Both the Courts, on a proper appreciation of the evidence on record, held that the plaintiff had succeeded in proving his ownership over the suit property in pursuance of the registered sale-deed dated 10th of October, 1986. The Courts held that the plaintiff had further succeeded in proving that he was put in possession of the suit property and was in possession thereof till 25th of July, 1987. The Courts held that the plaintiff proved that the defendant no.2 had a right and title over the suit property and he had sold the same to the plaintiff by a registered sale-deed dated 10th of October, 1986. The Courts recorded a finding that the defendant no.1 could not have claimed ownership over the suit property in pursuance of the document styled as ‘Bayanapatra’ as it was not a document of title. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The submission made on behalf 3 of the appellant, that the appellant was entitled to protect his possession over the suit property in pursuance of the provisions of Section 53-A of the Transfer of Property Act, is liable to be rejected for the reason that the appellant had firstly not raised this plea in the written statement and secondly, this plea was not available to the appellant against the plaintiff and the same could have been available to the appellant only in a suit filed by the original defendant no.3, who had allegedly executed a ‘Bayanapatra’ in favour of the appellant. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE