Bombay High Court
Pralhad S/O Nathuji Nemade vs Gajanan S/O Dnyandeo Pohare on 18 April, 2016
Bench: A.S. Chandurkar
1 sa.278.14.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.278 OF 2014
Appellant : Pralhad Nathuji Nemade,
Aged about 70 years, Occu. Cultivation,
R/o Ural Bk. Tah. Balapur, District Akola.
-- Versus --
Respondent
: Gajanan s/o Dnyandeo Pohare,
Aged about 44 years, Occu. Business,
R/o Ural Bk. Tah. Balapur, District Akola.
At present residing at Dabki Road, Akola,
Tah. & Distt. Akola.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri S.D. Chopde, Advocate for the appellant.
Shri U.J. Deshpande, Advocate for the respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
C ORAM : A.S. CHANDURKAR, J.
DATE : APRIL 18, 2016.
ORAL JUDGMENT :-
ADMIT.
02] Heard finally with the consent of the learned Counsel for the
parties.
03] The present appeal has been filed by the original defendant,
who is aggrieved by the decree passed by the trial Court granting
2 sa.278.14.jud
permanent injunction in favour of the respondent, who is the original
plaintiff.
04] It is the case of the respondent that in respect of land bearing
Gat No.165, admeasuring 1 hectare 74 ares situated at Village Ural, an
agreement dated 29/07/2004 was entered into by the appellant agreeing
to sell the same in favour of the respondent. A sale-deed came to be
executed on 15/12/2004. The respondent on the basis of sale-deed dated
15/12/2004 claims ownership of the field in question. As the possession of
the respondent was threatened, he filed a suit for permanent injunction
based on title. According to the appellant, the transaction in question was
on account of money lending transaction and that the sale-deed was a
nominal document. The possession of the respondent was also denied.
The trial Court recorded a finding that the respondent was the
owner of the suit property on the basis of sale-deed dated 15/12/2004. It
further held that the appellant had not proved that the sale-deed in
question was a nominal document. It, therefore, decreed the suit for
permanent injunction. The appellant Court has confirmed said decree by
its judgment dated 27/01/2014.
3 sa.278.14.jud
05] Shri S.D. Chopde, the learned Counsel for the appellant
submitted that despite material evidence on record showing possession of
the appellant, the Appellate Court has failed to take into consideration the
same and has confirmed the findings of the trial Court. He submitted that
the 7/12 extract at Exh.73 and the report made to the police authority at
Exh.81 along with the legal effect thereof has not been considered. He
urged that the submissions in that regard have been reiterated in paragraph
9 of the impugned judgment, but there is no consideration of the same. He
further submitted that the specific defence of the appellant that the sale-
deed dated 15/12/2004 was a nominal document has also not been
considered in its proper perspective. He, therefore, submits that the
aforesaid gives rise to a substantial question of law.
06] She U.J. Deshpande, the learned Counsel for the respondent
supported the impugned judgment. He submitted that the Appellate Court
has found that the sale-deed dated 15/12/2004 being a registered
document, its legal effect was in favour of the respondent. The witness
examined on behalf of the defendant also indicated that it was the plaintiff,
who was in possession of the suit property. He further urged that as the
defendant had not sought any declaration as regards validity of the sale-
deed dated 15/12/2004, the Appellate Court rightly did not go into said
4 sa.278.14.jud
question. He submitted that as the suit was for injunction simplicitor, the
question as regards validity of title was not involved.
07] I have perused the impugned judgment. The following
substantial question of law arises for consideration :
Whether the Appellate Court has decided the appeal by
considering the entire material on record in accordance with the
spirit of the provisions of Order XLI Rule 31 of the Code of Civil
Procedure?
08] The evidence on record, which was led by the parties includes
7/12 extracts filed by both the parties. The plaintiff had filed 7/12 extracts
at Exh.49 to Exh.52, which show his possession. The defendant filed a
7/12 extract at Exh.73 which shows the possession of the defendant as well
as the report of police complaint at Exh.81. In paragraph 9 of the
judgment of the Appellate Court, a reference has been made to this
evidence on record. However, while answering Point No.1, only discussion
that can be found is in paragraph 13 of the judgment of the Appellate
Court. The effect of 7/12 extracts at Exh.49 to Exh.52 on the one hand and
the effect of documents at Exh.73 and Exh.81 has not been considered. As
the parties had relied upon these documents in support of their respective
5 sa.278.14.jud
cases, the same were required to be taken into consideration by the
Appellate Court. The findings recorded against Point No.1 is, therefore,
without considering of the documentary evidence on record. The
substantial question of law as framed is answered by holding that the
Appellate Court has decided the appeal without considering the entire
evidence on record and the same is not in accordance with the spirit of
provisions of Order XLI Rule 31 of the Code of Civil Procedure.
09] Insofar as the defence raised by the appellant regarding the
sale-deed dated 15/12/2004 being a nominal document is concerned, the
Appellate Court has observed that the question of title in the suit was not
material, as the suit was filed for permanent injunction. While the learned
Counsel for the appellant urged that this finding was incorrect, said finding
has been supported by the learned Counsel for the respondent. However,
as I find that it would be necessary to direct the Appellate Court to
reconsider the entire material on record, it is not necessary at this stage for
this Court to go into such aspect. As the appeal is required to be decided
afresh, the respective contentions in that regard can be urged before the
Appellate Court. No opinion in that regard is being expressed by this
Court.
6 sa.278.14.jud
10] In view of aforesaid, the following order is passed :
i. The judgment dated 27/01/2014 in R.C.A. No.130/2009 is set
aside.
ii. The proceedings are remanded to the Appellate Court for
deciding said appeal afresh and in accordance with law. It is
made clear that this Court has not expressed any opinion on
the correctness of any of the findings recorded by the trial
Court. The appellate Court shall decide the appeal on its own
merits.
iii. As the appeal is of the year 2009, same shall be decided
expeditiously and by the end of August, 2016. The parties
shall appear before the Appellate Court on 6th of June, 2016.
iv. The second appeal is allowed in aforesaid terms with no order
as to costs.
JUDGE
*sdw
