( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 860 OF 2009 Devrao s/o Thoraba Gadhe APPELLANT VERSUS Babanrao s/o Fakirrao Waghmare and others. RESPONDENTS ..... Mr. P.V. Mandlik, Senior Counsel, instructed by Mr. Amol Gandhi, advocate for the appellant. Smt. M.R. Jamdhade, advocate for the respondent No. 1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th December, 2009] PER COURT : 1. Heard learned counsel for the parties. 2. The appellant is original plaintiff. He had filed suit (R.C.S. No. 59/2002) for injunction of ownership and perpetual injunction. The suit was decreed by the trial Court. However, the first Appellate Court reversed the findings of the trial Court and held that the appellant (plaintiff) was not entitled to the relief ( 2 ) of declaration and injunction as such. 3. The dispute relates to agricultural land bearing Gat No. 63, admeasuring 1 Hectare 31 Ares, situated at village Talang. According to the respondents, the appellant agreed to alienate the suit land by an agreement dated 17-08-1999 which was reduced into writing. It was agreed that the land in question will be sold for consideration of Rs. 98,250/-. It was further alleged that possession was delivered to the defendants immediately after execution of written agreement of sale and on payment of Rs. 20,000/- by way of earnest. The defendants further alleged that they paid further amounts including hand loan of Rs. 75,000/- which was obtained by the plaintiff to meet out his domestic expenditure and expenditure required for marriage of his daughter. They further submitted that they are in continuous possession on basis of agreement of sale dated 17-08-1999 and as such, are entitled to seek protection under section 53A of the Transfer of Property Act. ( 3 ) 4. The trial Court held that the plaintiff’s possession was duly proved because his name appeared in the revenue record as cultivator of the suit land and there was a single entry recorded in 2002 which showed the possession of the defendant No. 1. 5. Mr. Mandlik would submit that a stray entry could not be regarded as proof of the actual possession of the defendants. He would submit that the first Appellate Court committed an error while holding that delivery of possession to the defendants was duly proved. 6. It is pertinent to note that the findings of the first Appellate Court are based on material which was made available. The first Appellate Court considered recitals of the agreement of sale (Exh-84). Agreement of sale is corroborated by DW Ashok Shinde. The first Appellate Court noticed that the appellant (plaintiff) did not refer to the transaction depicted in the agreement of sale (Exh-34). The defendants produced the original agreement of sale and the same was ( 4 ) confronted to the plaintiff. It appears that the plaintiff did not even admit his signature on the agreement of sale. The plaintiff did not refer to the said agreement in the pleadings. Considering the version of the attesting witness i.e. DW Ashok Shinde, it is proved that the plaintiff, in fact, executed the said agreement of sale in favour of the defendants. The credibility of the plaintiff was shaken when he even denied the signature at the bottom of the agreement of sale (Exh-34). It transpires from the record that notwithstanding the agreement was executed on 17-08-1999, name of the plaintiff continued to appear in the revenue record. It was on application of the defendants that in the year 2002, the entry in the name of the plaintiff was deleted and that of the defendant No.1’s name was substituted. The first Appellate Court came to the conclusion that major portion of the consideration amount is paid to the plaintiff. It appears that without getting possession, ordinarily, the defendants would not have parted with the major amount of consideration. Needless to say that the findings rendered by the first Appellate Court are based on ( 5 ) material. 7. In “Gurdev Kaur and others v. Kaki and others” (AIR 2006 SC 1975), the Apex Court has held that even if the findings of facts are grossly incorrect, then also the second appeal cannot be entertained, in view of legal embargo created by section 100 of the Civil Procedure Code. In the circumstances, this appeal being only against findings of facts, stands dismissed, for want of substantial question of law. 8. In view of dismissal of the second appeal, civil application No. 12476/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa860.09