Bombay High Court
Abdul Hamid S/O Abdul Karim And ... vs Gulam Tamiz S/O Faizulla on 8 December, 2009
Bench: A.B. Chaudhari
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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
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
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
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
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
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
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
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
