The main legal point established in the judgment is the application of Section 92 Proviso (1) of the Evidence Act, which permits oral evidence to contradict a document, and the limited power of the High Court to interfere in second appeal under Section 100 of the CPC.

JUDGMENT :

1. This Second Appeal is filed by the Original Plaintiff/appellant herein, who had filed Regular Civil Suit No.73 of 2007. The Civil Suit came to be dismissed on 28th March, 2010. Regular Civil Appeal No.274 of 2010 was filed by the Original Plaintiff before the District Judge, Wardha. The said appeal is also dismissed on 20.4.2012. Hence, the present appeal is filed by the said Original Plaintiff/appellant against the concurrent findings of both the Courts below.

2. The case of plaintiff/appellant, in short, is that defendant nos. 1 and 2 are owners of field bearing Survey Nos. 171 and 172, total area 3.65 HR. of mouza Wagholi, Tq. Higanghat. Defendant nos. 1 and 2 agreed to sell 1.01 HR land out of said land for a consideration of Rs.91,000/-. Oral agreement to that effect took place on the day of Gudi Padwa of the year 2006. The plaintiff paid earnest amount of Rs.20,000/- to the defendants. The defendants handed over possession of 1.01 HR. land out of Survey Nos. 171 and 172 to the plaintiff. The sale deed was to be executed on 3.11.2006, after payment of balance consideration. The defendants agreed to convert the said land into Class I and thereafter, sale deed was to be executed. But, till 3.10.2006, the defendants did not apply for conversion of the land. They were in need of money for the education of defendant no.2. Therefore, they obtained Rs.70,000/- from the plaintiff as a part payment of consideration and executed a registered agreement of sell on 4.10.2006 in favour of the plaintiff. Balance consideration of Rs.1,000/- was to be paid at the time of sale deed. The defendants failed to execute the sale deed. Therefore, Regular Civil Suit No.73/2007 was filed for specific performance of contract and permanent injunction against the defendants.

3. The defendants/respondents appeared and filed their Written Statement at Exh.18 and submitted that they never executed agreement of sell to the plaintiff. Father of plaintiff is money lender. The defendants were in need of money. Therefore, they obtained hand loan of Rs.40,000/- from the father of plaintiff. The father of plaintiff got executed nominal document of sell dt.4.10.2006 towards security of loan. The said document was executed in the name of plaintiff. Due to failure of crop, the defendants could not repay the loan amount. They have submitted that they never handed over possession to the plaintiff. They are in possession of the suit field. Therefore, they prayed to dismiss the suit.

4. Learned Civil Judge (Jr.Dn.), Hinganghat framed issues. Both the parties adduced their evidence. The trial Court as well as the first Appellate Court came to the conclusion that the plaintiff failed to prove that defendants agreed to sell suit land. The evidence of plaintiff and his witnesses is contradictory. Therefore, both the Courts came to the conclusion that it was not agreement to sell, but it was the document executed towards security in respect of loan amount of Rs.40,000/-. Therefore, both the Courts recorded findings against the appellant.

5. This Court has admitted this appeal on 18th February, 2013 on the following substantial questions of law :

(a) Whether the courts below were right in holding that the agreement to sell dated 03.10.2006 has been proved?

(b) Whether the courts below were right in holding that the agreement dated 03.10.2006 was a nominal transaction and it was not to be acted upon particularly when the courts below have held that the execution of the said agreement is admitted by the defendants?

6. Heard Mr.S.P.Hedaoo, learned Counsel for the appellant. He has pointed out agreement to sell (Exh.35) and submitted that it is a registered document and therefore, oral evidence to contradict contents of document is not permissible. Learned Counsel has submitted that plaintiff has paid Rs.90,000/- to the defendants. The defendants failed to execute the sale deed. It is, therefore, prayed to allow the appeal and grant decree of specific performance agains