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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : N A G P U R.
SECOND APPEAL No. 177 OF 1994
1. Abdul Hamid s/o Abdul Karim - Deleted through L.Rs.
(1) Nafisha Begum Abdul Hamid,
aged 65 years, Occ.: Household.
(2) Afroz Begum wd/o Abdul Wahid,
aged 40 years, Household,
Dhamangaon Railway, Distt. Amravati.
(3) Isharad Dul s/o Abdul Hamid,
aged 38 years, Agriculturist.
(4) Ezaz Abdul Hamid,
aged 36 years, Agriculturist.
(5) Ashahul Abdul Hamid,
aged 36 years, Agriculturist.
(6) Nilofar Parveen Ashfak Ahmed
aged 32 years, Household work.
(7) Altaful Abdul Hamid
aged 30 years, Agriculturist.
(8) Ku. Shama Afroj Abdul Hamid,
aged 21 years, Household.
(9) Iftekharul Abdul Hamid,
aged 24 years.
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(10) Ku. Mahejabin Abdul Hamid,
aged 22 years, Education.
(11) Ahfazul Abdul Hamid,
aged 19 years, Education.
(12) Smt. Raziya Begum wd/o Anwarul s/o Abdul Hamid,
aged 42 years, Household work.
(13) Raja Hamid s/o Anwarul Hamid (Minor)
aged 8 years.
(14) Ku. Sadiya d/o Anwarul Hamid, minor
aged 10 years.
Nos. 12 & 13 minors by mother
Razia Begum - Guardian.
2. Hafiza Begum w/o Abdul Karim,
aged 77 years, Occ.: Holdwork,
r/o Wagholi Bk. Tahsil Chandur Railway,
Now residing near Police Chowki Chaprasipura,
Amravati Camp, Amravati. ... APPELLANTS.
-VERSUS -
Gulam Tamiz s/o Faizulla - Deleted as dead thr. L.Rs.
1. Smt. Raziya Begum wd/o Gulam Tamiz,
aged 65 years, Household.
2. Afsar Husain Gulam Tamiz,
aged 35 years. Agriculturist.
3. Zakir Husain Gulam Tamiz,
aged 32 years, Agriculturist,
4. Arif Husain Gulam Tamiz,
aged 30 years, Agriculturist.
5. Nazir Husain Gulam Tamiz
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aged 28 years, Agriculturist.
6. Ku. Shaista d/o Gulam Tamiz,
aged 26 years, Occ.: Household work.
7. Ku. Firoz d/o Gulam Tamiz,
aged 24 years,
All r/o Mangrul Dastgir, Tq. Tiwsa,
District Amravati. ... RESPONDENTS.
....
Mr. L. A. Mohta Advocate for the Appellants.
Mr. Sachin Deshpande Advocate for the Respondents.
ig ....
CORAM : A.B. CHAUDHARI, J.
RESERVED ON : 13.11.2009.
PRONOUNCED ON : 8 DECEMBER, 2009.
th
ORAL JUDGMENT :
Being aggrieved by the judgment and decree dated
30.11.1993 in Regular Civil Appeal No. 192 of 1985 passed by Additional District Judge, Amravati, confirming the judgment and decree dated 7.2.1985 in Special Civil Suit No. 100 of 1984 dismissing the suit filed by the appellants/plaintiffs, the present appeal was filed.
2. I have gone through the impugned judgment and decree passed by the courts below. Having heard learned counsel for rival parties, following substantial questions of law arise for my determination-
(i) Whether the sale-deeds (Exs. 66 & 67) which were admittedly obtained without payment of total ::: Downloaded on - 02/08/2016 16:57:09 ::: 4 consideration agreed and in the face of the agreements (Exs. 60 & 63) after the execution of the sale-deeds to make complete payment of the balance consideration due to Government and other loans on the fields of the plaintiffs remaining unpaid, the said sale-deeds Exs. 66 & 67 being incomplete and for want of payment of total consideration, were required to be ignored or were not binding on the appellants/plaintiffs.
(ii) Whether appellants/plaintiffs are entitled to a declaration that they are the owners of the suit field and are entitled to possession of the suit property.
3. In support of appeal, Mr. L.A. Mohta learned counsel for the appellants argued that the two sale-deeds (Exs. 66 & 67) which were executed themselves contain recital that there is a loan on the suit properties which respondents undertook to clear instead of making payment of the said amount of loan to the appellants/plaintiffs directly.
The appellants/plaintiffs thus received Rs.5,000/- and the balance amount agreed under the sale-deeds (Exs. 66 & 67) was required to be paid by the respondents directly to the Government or the banks who had to recover the loan from the appellant/plaintiffs. According to Mr.Mohta it is an admitted position and in the evidence respondent candidly ::: Downloaded on - 02/08/2016 16:57:09 ::: 5 admitted that even till the date of evidence he did not comply with the said condition in the sale-deeds and thus did not pay the loan amount.
He thus argued that both the sale-deeds were conditional and were not completed by the respondents and therefore in the eye of law and in the absence of passing of total consideration agreed as per the sale-deeds, the sale deeds were void and liable to be declared so. Pointing out the agreements (Exs. 60 and 63) he argued that one more opportunity by way of these agreements was given to the respondents to make payment of those loan amounts as the appellants continued to receive notices for non payment of loan. According to Mr.Mohta it is again admitted position that the respondents never bothered to honour even the said agreements (Exs. 60 & 63). According to him a finding has been recorded by the trial Court that the appellants/plaintiffs continued to be in possession of the said property and even now are in possession thereof. He assailed the findings of the courts below in not granting any relief to the appellants on the ground that there was no condition in the sale-deeds that upon non-payment of loan dues the sale-deeds would be inoperative and the Courts could not declare those sale-deeds void and illegal.
4. Lastly, Mr.Mohta agreed to pay back the entire amount of Rs.5,000/- received at the time of execution of sale-deeds in respect of the suit fields along with interest at 9% per annum from the date of execution ::: Downloaded on - 02/08/2016 16:57:09 ::: 6 of the sale-deeds, i.e. 10.3.1975 within reasonable time and to decree the suit filed by the appellants/plaintiffs in that event. Accordingly, Mr.Mohta has filed pursis to that effect which is taken on record and marked "X" for identification. The said pursis is signed by the appellants and solemnly affirmed.
5. Per contra, Mr.Deshpande learned counsel for the respondents vehemently opposed the appeal and argued that what was to be paid was the Government loan and nothing more under the terms of those sale-deeds (Exs. 66 & 67) and nothing was specified by the appellants/plaintiffs about the loans which were to be repaid and therefore the respondents cannot be blamed for non-payment of loan.
According to Mr.Deshpande the sale-deeds having been executed, title having been passed by virtue thereof, the sale-deeds cannot be treated as void in the absence of any clause in the sale-deeds for re-conveyance.
Therefore, according to him, the courts could not have declared the sale-
deeds void as prayed by the appellants/plaintiffs. In the absence of any condition about re-conveyance of the document about the sale-deeds it could not be said that the sale-deeds were conditional and in breach thereof the Court would get jurisdiction to pass a declaration that the same were void. Mr.Deshpande thus prayed for dismissal of the appeal.
6. The trial Court had framed issue no.3 as to whether the ::: Downloaded on - 02/08/2016 16:57:09 ::: 7 respondents had agreed to repay the loan of Government, Co-operative Banks and Co-operative Societies outstanding against the appellants/plaintiffs and answered the said issue in affirmative. The first appellate court has concurred with this finding recorded by the trial Court. I have therefore no difficulty in holding that the respondent/defendants had agreed to pay entire loan of the Government, Co-operative Banks and Co-operative Societies and that amount were to be paid from out of the total consideration agreed for execution of those sale-deeds. The submission made by Mr.Deshpande on this finding cannot be countenanced since the concurrent finding has not been put to challenge.
7. Issue no. 4 that was framed by the trial Court was also answered in the affirmative. Issue no. 4 was as to whether the respondent/defendant had deceived the plaintiffs. As regards possession, issue no.5 framed was, whether the plaintiffs proved that they remained in possession despite execution of sale-deeds and this issue was answered in negative.
8. However, perusal of the judgment of the trial Court shows that the appellants/plaintiffs are in possession after the proceedings under Section 145 Criminal Procedure Code were concluded and the possession is that of the appellants. There is no clear finding by the first ::: Downloaded on - 02/08/2016 16:57:09 ::: 8 appellate court to that effect. The only ground on which the courts below have refused to issue declaration that the appellants/plaintiffs were the owners of the suit properties and that the sale-deeds were inoperati8ve and not binding on the appellants/plaintiffs is that those sale-deeds (Exs. 66 & 67) themselves did not contain any clause for re-
conveyance in the event of breach of terms and conditions of payment of loan. It is not in dispute that both the sale-deeds in clear cut terms provided that the total loan liability outstanding against the plaintiffs was required to be cleared by the respondent/defendant from the balance total consideration and that was the specific condition mentioned in the sale-deeds. It may be true that the sale-deeds do not contain a clause of re-conveyance in breach thereof. In view of the findings recorded by both the courts below and the admission tendered by the respondent/defendant that he did not pay the loan at all though he had agreed to pay the same under the sale-deeds and thereafter under the agreements (Exs. 60 & 63) nor did he produce any evidence regarding payment thereof. It cannot be said that they were completed sale-deeds .
If that is so, in my opinion, for non payment of balance consideration, the sale-deeds were incomplete and did not in law pass title in favour of the respondent/defendant. It has come on record that the appellants continued to receive notices from the Government and the ::: Downloaded on - 02/08/2016 16:57:09 ::: 9 banks/societies for many years since the respondent/defendant did not bother to repay the loan and did not clear the outstanding dues of the plaintiffs as agreed by him. The sale-deeds thus being incomplete in law, no valid title could be said to have been passed to the respondents/defendants. I concur with the answer given by the trial Court on issue no.4 that in fact respondent/defendant deceived the plaintiffs and obtained the sale-deeds. The trial Court recorded such a finding obviously because ultimately it was found that the defendant/respondent misrepresented the plaintiffs that he would make payment of all the loans and did nothing. Therefore, the findings recorded by the Courts below are perverse and not in accordance with law. The sale-deeds (Exs.66 & 67) were thus incomplete and were not binding on the appellants/plaintiffs and were inoperative and therefore a declaration will have to be issued that appellants/plaintiffs continued to be the owners of the suit properties. In order to be very clear in a case a dispute about possession is raised henceforth, a decree for possession is required to be passed in case the plaintiffs have lost possession during interregnum or at any time.
9. The appellants themselves have expressed willingness to make repayment of Rs. 5,000/- which they received at the time of execution of sale-deeds (Exs.66 & 67) vide the pursis marked "X" for ::: Downloaded on - 02/08/2016 16:57:09 ::: 10 identification, which is a part of record. Acting on that pursis, it would be appropriate to ask the appellants/plaintiffs to make payment in accordance with the order that is being made hereinafter. In the result, I make the following order.
10. Appeal is allowed. Impugned judgments and decrees passed by the Courts below in Regular Civil Appeal No. 192/85 and Special Civil Suit No. 100 of 1984 are set aside. Special Civil Suit No.100 of 1984 is decreed with costs throughout. It is declared that appellants/plaintiffs are the owners of the suit fields and the sale-deeds (Exs.66 & 67) in respect of the suit fields are incomplete and not binding on the plaintiffs and inoperative and no title thereunder has passed to the defendants/ respondents. The possession of the suit fields shall be delivered to the appellants/plaintiffs and continue to be so hereinafter. There shall be no decree for mesne profits etc. The appellants shall pay amount of Rs.
5,000/- with 9% simple interest thereon from 10.3.1975 till 31.3.2010 and the said entire amount shall be payable by the appellants by 31.3.2010.
JUDGE ::: Downloaded on - 02/08/2016 16:57:09 :::