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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.485 OF 2002
APPELLANT: Jyotiram S/o Undraji Naik, Aged 62
years, Occu-Agriculturist, Resident of
(Ori.Deft.)
Giroli, Tahsil Chandur Rly., Dist.
Amravati.
-VERSUS-
RESPONDENTS: Ashok Tarachand Ramteke, aged 37
(Ori. Plff. on years, Occu-Agriculturist, Resident of
R.A.)
Ward No.23, Bhimnagar, Pulgaon
District Wardha.
Shri P. R. Agrawal, Advocate for the appellant.
Shri N. R. Saboo, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 06, 2017.
ORAL JUDGMENT :
1. This second appeal is filed by the original defendant and it was admitted by framing the following substantial questions of law:
(1) Whether the sale deed dated 9-2-1988 (Exh.49) was executed by the present appellant in favour of ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:06:43 ::: SA485.02.odt 2/7 Gangaram was or was not a nominal document?
(2) Whether Gangaram could have executed the subsequent sale deed on 6-7-1992 in favour of the present respondent?
2. It is the case of the respondent - plaintiff that field Survey No.178/2 admeasuring 1 hectare 62 R was initially owned by the defendant. He sold the suit property to one Gangaram Pachode on 9-2-1988 for a consideration of Rs.15,000/-. On 6-7- 1992, the plaintiff purchased the suit property from said Gangaram Pachode for a consideration of Rs.28,000/-. It is the case of the plaintiff that he was dispossessed in July 1993. He issued a notice on 6-8-1996 and then filed suit for recovery of possession. It was his case that he was the owner of the suit property pursuant to the sale deed dated 6-7-1992.
3. The appellant - defendant filed his written statement at Exhibit-19 and denied the case of the plaintiff. According to him, the sale deed dated 9-2-1988 was nominal in nature and it was executed out of a money lending transaction. According to him, his son Keshav had agreed to purchase two acres of land. As said Keshav was in need of Rs.10,000/- as an earnest amount, the loan was obtained from Gangaram. It was further pleaded that the defendant continued in possession of the suit property and hence, the plaintiff did not have any valid title.
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4. After the parties led evidence before the trial Court, it was held that the plaintiff had proved his title on the basis of sale deed dated 6-7-1992. It was however held that since 1993, the defendant was illegally cultivating the suit land. On that basis the suit was partly decreed and decree for delivery of possession was passed. The first appellate Court dismissed the appeal filed by the defendant.
5. Shri P. R. Agrawal, learned Counsel for the appellant submitted that the sale deed dated 9-2-1988 was nominal in nature. According to him, the possession of the suit field was never handed over to Gangaram and the defendant continued in possession thereof. Even when the sale deed dated 6-7-1992 was entered into neither Gangaram nor Ashok - plaintiff were in possession. He referred to the 7/12 extracts on record as well as the finding of the Courts in that regard to submit that the plaintiff never came in possession pursuant to his sale deed. He referred to the other evidence on record to indicate that the defendant and said Gangaram were doing plot business. On the basis of the entire evidence on record, it was proved that the transaction between the parties on 9-2-1988 was not an out and out sale. Relying upon the judgment of the Hon'ble Supreme Court in Brijvasilal vs. Abdul Haji (2001) 9 SCC 367, it was submitted that in absence of any ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:06:43 ::: SA485.02.odt 4/7 pleading that the plaintiff was put in possession, it ought to have been held that the transaction was never completed. It was thus submitted that the sale deed dated 9-2-1988 was a nominal document. Hence, the plaintiff had no title in the suit property.
6. Shri N. R. Saboo, learned Counsel for the respondent supported the impugned judgment. According to him, execution of the sale deed at Exhibit-49 was not disputed. He submitted that in July, 1993, the plaintiffs had been dispossessed. The notice dated 6-8-1996 issued by the plaintiff was not replied and this indicated that the defence as raised by the defendant was merely an afterthought. According to him, if the execution of the document was admitted, then the aspect of possession becomes secondary. Both the Courts having held that the transaction was one of sale, no interference was called for.
7. I have heard the learned Counsel for the parties at length and perused the records of the case. According to the defendant, the sale deed dated 9-2-1988 by which he sold the suit property to one Gangaram Pachode at Exhibit-49 was a nominal transaction. In this regard if the evidence of the defendant is perused, it would be seen that it was his case that his son Keshav had entered into a transaction for purchasing four acres land from Gangaram. The said field was at Nachangaon. In his cross- ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:06:43 :::
SA485.02.odt 5/7 examination he was unable to give the date when that transaction took place. He stated that the subsequent sale deed was only of two acres of land on the basis of which he had got possession. The sale deed was executed immediately on the next day after the suit land was sold in favour of Gangaram. In so far as the sale deed at Exhibit-49 is concerned, its execution was duly admitted by the defendant. This document was initially marked as article 'B' and was subsequently marked as Exhibit-49. The total consideration was Rs.15,000/- out of which Rs.11,000/- were received from Gangaram in the office of the Sub Registrar. There is a statement in said sale deed that the possession of the suit field was handed over to Gangaram. It is to be noted that the plaintiff had taken steps for calling the copy of the original sale deed and permission in that regard was granted by the trial Court as per order below Exhibit-39. Ultimately, a photo copy of that document was placed on record which was then marked as Exhibit-49. The sale transaction dated 9-2-1988 thus stands proved.
8. On 6-7-1992, said Gangaram sold the suit property to the plaintiff. According to the plaintiff, he was dispossessed in July, 1993. He issued a notice on 6-8-1996 at Exhibit-35 and demanded possession alongwith damages. No reply was given to this notice after which the present suit came to be filed. The 7/12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:06:43 ::: SA485.02.odt 6/7 extracts at Exhibit-37 indicate possession of the defendant. According to the plaintiff, these entries were challenged before the revenue Authorities. The defendant admitted that in the year 1990 itself Gangaram had applied for having his name mutated and after the name of Gangaram was entered in the records he did not challenge the same.
9. According to the defendant, as possession of the suit property was never delivered to the plaintiff he did not get title to the same. In this regard, it is to be noted that the vendor - Gangaram has not challenged the sale deed dated 6-7-1992 at Exhibit-31 not is it his grievance that such transaction was never entered into with the plaintiff. Though it is urged on behalf of the defendant that the aspect of possession not being with the plaintiff is fatal to his case, the same cannot be considered in isolation. The entire evidence on record will have to be taken as a whole to consider whether the plaintiff has proved his title as per said sale deed or that the defendant has proved that it was a nominal transaction. The attesting witnesses to the earlier sale deed at Exhibit-49 were not examined by the defendant to indicate a different nature of transaction. There is further no evidence to indicate money landing transaction by Gangaram. The payment of consideration of Rs.11,000/- in presence of the Registrar is also a ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:06:43 ::: SA485.02.odt 7/7 material factor that cannot be ignored. The defendant has not succeeded in proving that the sale deed dated 9-2-1988 in favour of Gangaram was a nominal document. Thus, considering the entire evidence on record, I find that both the Courts were justified in coming to the conclusion that the plaintiff obtained title as per sale deed dated 6-7-1992. On that count, sale deed dated 6-7-1992 executed by Gangaram in favour of the plaintiff would have to be upheld. In the facts of the case, the ratio of the decision in Brijvasilal (supra) cannot assist the defendant. The substantial questions of law are answered accordingly.
10. In view of aforesaid, the judgment of the first appellate Court stands confirmed. The second appeal is accordingly dismissed. No costs.
11. At this stage, the learned Counsel for the appellant seeks continuation of interim relief that is operating. This request is opposed by the learned Counsel for the respondent. In the facts of the case, the interim relief shall continue to operate for a period of eight weeks from today and shall cease to operate automatically thereafter.
JUDGE /MULEY/ ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 01:06:43 :::