1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION' SECOND APPEAL NO.97 OF 2004 Shri Sunil Vasant Dudawadkar : Appellant. versus Smt.Manorama Manohar Mirajkar : Respondent. Shri.Niranjan Mogre i/by Shri Sachindra B. Shetye for the Appellant. CORAM : R.M.SAVANT, J DATED : AUGUST 28, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 16/8/2003 passed by the learned Additional district Judge, Khed by which the Judgment and Decree dated 18/1/2001 passed by the trial Court i.e. The learned Civil Judge, Senior Division, Ratnagiri came to be confirmed 2. The Appellant herein is the original Plaintiff who had filed 2 Special Civil Suit No.166 of 1997 seeking specific performance of an oral agreement dated 1.2.1995 in respect of the suit property which was agreed to be sold to him for a consideration of Rs.50,000/-. 3. It was the case of the Appellant/Plaintiff that the suit property was agreed to be sold by the Respondent/Defendant in view of the fact that she and her husband were indebted to the tune of Rs.44,808/- to different Banks and Societies. The house of the Defendant being House No.123 was attached by the creditors and was about to be auctioned in satisfaction of the loan amount. As per the oral agreement, apart from the consideration of Rs.50,000/-, the Plaintiff had also agreed to carry out the repairs to the house of the Defendant at his own costs. It was the further case of the Plaintiff that at the time of said oral agreement, he had paid Rs.5,200/- to the Defendant in presence of certain persons. 4. The Defendant filed her written statement and denied the oral agreement dated 1.2.1995. She denied the consideration of Rs.50,000/- and receipt of Rs.5,200/- as advance from the Plaintiff. She further denied that the Plaintiff repaid any loan amount of the 3 Defendant from his own pocket and repaired the house by incurring the expenses of Rs.28,000/- and, consequently she denied the payment of the total amount of Rs.78,808.45 by the Plaintiff. It was contended in the written statement that the owner of the suit property was one Smt.Laximbai Relekar and, therefore, during her life-time the Defendant or her husband has no legal right to enter into any transaction and, hence there was no transaction dated 1.2.1995. 5. The parties went to trial. The trial Court on the basis of the evidence that was led held that the Plaintiff had failed to prove the said oral agreement for sale dated 1.2.1995 for the consideration of Rs.50,000/- and the payment of earnest money and repayment of loan amount which was outstanding against the Defendant or her husband Manohar as also the expenses incurred by the Plaintiff for repairs of the house and, therefore, dismissed the said suit. 6. Aggrieved by the dismissal of the said suit, the Appellant/Plaintiff filed Civil Appeal No.166 of 2003. The Lower Appellate Court confirmed the findings of the trial Court on the aforesaid points and dismissed the said Appeal. The Lower Appellate 4 Court held that it is impossible to believe that the Plaintiff, who had paid earnest money of Rs.5200/- and further amount of Rs.48,808.45 to repay the bank and societies loan, had not taken anything in writing from the Defendant or her husband Manohar. The Lower Appellate Court also found the case of the Appellant/Plaintiff that he had paid Rs.50,000/- without taking possession of the property in question difficult to accept. The Lower Appellate Court did not accept the case of the Appellant/Plaintiff that he carried out the repairs to the house of the Defendant. 7. Both the Courts below have concurrently recorded a finding of facts on the aforesaid points. In my view, the challenge raised in the above Second Appeal, does not involve any substantial question of law. The Second Appeal is accordingly dismissed. [R.M.SAVANT, J]