Bombay High Court
Shriram Ratanlal Thakur vs Rameshwar Shaligram Chandak on 7 June, 2016
Bench: T.V. Nalawade
1 SA 1698 of 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.1698 of 2005
* Shriram s/o Ratanlal Thakur
Since deceased, through his
legal representatives :
1-A) Shanta w/o Shriram Thakur,
Age 48 years,
Occupation : Household.
1-B) Pravin Shriram Thakur,
Age 35 years,
Occupation : Service.
1-C) Vishal Shriram Thakur,
Age 31 years,
Occupation : Business.
All R/o House No.4-5-20/P
Kumbharwada, Aurangabad.
1-D) Archana w/o Balkishan Pardeshi,
Age 34 years,
Occupation: Housewife,
R/o Barshi, Taluka Barshi,
District Solapur.
1-E) Vandana w/o Amrutsingh Thakur,
Age 34 years
Occupation: Housewife,
R/o Barshi, Taluka Barshi,
District Solapur. .. Appellants.
Versus
* Rameshwar s/o Shaligram Chandak
Since deceased, through his
legal representatives :
::: Uploaded on - 15/06/2016 ::: Downloaded on - 30/07/2016 04:31:23 :::
2 SA 1698 of 2005
i) Sharada w/o Rameshwar Chandak
Age 45 years,
Occupation : Household,
R/o Kumbharwada, Aurangabad.
ii) Subham s/o Rameshwar Chandak,
Age 17 years,
Occupation: Student,
minor under guardianship of
his mother
Sharada w/o Rameshwar Chandak,
R/o Kumbharwada,
Aurangabad. .. Respondents.
ig --------
Shri. S.V. Adwant, Advocate, for appellants.
Shri. A.D. Kasliwal, Advocate, for respondents.
--------
CORAM: T.V. NALAWADE, J.
DATE : 7th JUNE 2016.
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Special Civil Suit No.296/2002 which was
pending in the Court of the Civil Judge, Senior Division,
Aurangabad and also against the judgment and decree of
Regular Civil Appeal No.197/2005 which was pending in
District Court Aurangabad. Heard both sides.
3 SA 1698 of 2005
2) The suit was filed by present respondent
Rameshwar for possession of some portion of the house
property viz first floor and it is part and parcel of CTS
No.4474/1 situated at Aurangabad. In Municipal record to
this property House number is given as 4-5-20/P. It is the
case of the plaintiff that under registered sale deed dated
20-10-1994 he purchased portion of 10×27 ft. from this
property from the defendant for consideration of Rs.1.5
lakh. It is contended that there was structure of building
having ground floor and first floor and the structure was
having roof of tin. It is contended that symbolic possession
of the ground floor was given at that time as one tenant
was occupying the premises and actual possession of
remaining portion was given.
3) It is the case of the plaintiff that during his
temporary absence the defendant illegally took possession
of first floor by removing wall and removing the
construction towards his remaining property from CTS
No.4474/1. It is contended that the plaintiff got possession
of the suit property after vacating the premises by the
tenant in the year 1997 and then he realized that the
4 SA 1698 of 2005
defendant had started occupying the first floor. It is the
case of the plaintiff that he wanted to pull down the entire
structure to make new construction and he requested the
defendant to vacate the first floor. It is contended that
under one or the other pretexts the defendant avoided to
vacate the first floor and consumed time.
4)
It is the case of the plaintiff that in the sale
deed, the description of the construction is not properly
mentioned though the construction sold is described as
one room having tin roof in stead of describing the
building as two storeyed building having tin sheets. With
these contentions possession of the first floor of the
structure was claimed.
5) The defendant filed written statement and
contested the matter. He denied everything including the
sale of the aforesaid property in favour of the plaintiff. It
is the contention of the defendant that he had executed
general power of attorney in favour of the plaintiff and the
plaintiff was expected to help him in getting vacated the
premises from the tenant. It is contended that there was
5 SA 1698 of 2005
agreement to allow the plaintiff to use the ground floor
for running business on payment of rent for the period of
ten years. It is contended that by making
misrepresentation to him his signatures were obtained in
the office of the Sub Registrar on a document of sale by
the plaintiff when he was under the influence of liquor. It
is contended that there was no intention of sale and so the
sale deed is not binding on him.
6) It is the case of the defendant that the
possession of the first floor of the structure is with the
plaintiff but it is permissive possession and he wants to
get back that possession.
7) On the basis of the aforesaid pleadings issues
were framed by the trial Court. The trial Court held that
under the sale deed not only the land but the structure
standing on it was sold to the plaintiff and the trial Court
held that the plaintiff is entitled to get relief of possession
and mesne profit. These findings are confirmed by the
first appellate Court.
6 SA 1698 of 2005
8) This Court, other Hon'ble Judge, admitted the
appeal on 3-4-2008 by observing that substantial
questions of law can be formulated on the basis of ground
Nos.1,2,3,6 and 10 mentioned in the appeal memo. The
grounds are as under :-
(1) Whether the learned court below erred in
passing the decree in favour of the plaintiff when there
is variance between pleading and proof as the property
mentioned in the plaint was other than the one
mentioned in the registered sale deed filed at Exh.
51 ?
(2) Whether the pleading in the plaint about the
description of property i.e. first floor and room therein
and oral evidence on behalf of plaintiff in support
thereof can be considered in support of plaintiff's case
contrary to Sections 91 and 92 of Indian Evidence Act,
when it is contrary to and not in consonance with the
contents of the written document ?
(3) Have the learned courts below erred in granting
the decree for possession of first floor of the suit
property on the basis of alleged sale deed, filed at Exh-
51, when the said sale deed did not refer to any first
floor of the suit property ?
7 SA 1698 of 2005
(6) Have the learned courts below not failed to
consider the pleading of the plaintiff, wherein he has
admitted that the description of suit property in the
sale deed is ambiguous and there is no reference to
first floor and ground floor in the said sale deed, filed
at Exh-51 ?
(10) Whether the courts below can rely upon the
claim affidavit filed by the original plaintiff at Exh-21,
when it is without verification, as is mandated under
Order 19 of CPC ?"
9) The main contention of the defendant-appellant
is in respect of the construction of the document of sale
deed. The execution of it is not disputed. The defence is
taken that the defendant was deceived and his signatures
were obtained in the office of the Sub Registrar when he
was under influence of liquor and false representation was
made to him that it was document of general power of
attorney. In view of the defence taken, the burden was on
the defendant to prove that there was no intention of sale
and there was other understanding between the parties.
The sale deed is at Exhibit 51 and in view of the nature of
defence taken by the defendant, this document can be
read as it is. Further, the document shows that the wife of
8 SA 1698 of 2005
the defendant had signed as a witness and also as a
person who was identifying the defendant before the Sub
Registrar. In view of this circumstance, it was necessary
for the defendant to examine himself and also examine
his wife who had signed before the Sub Registrar as a
witness and as a person who was identifying the
executant. This was not done. Along with the sale deed,
map of the structure which was sold under the sale deed
was given in the office of the Sub Registrar and the
property shown in the map is shown to be sold under the
sale deed. In view of these circumstances and in view of
the provisions of sections 91 and 92 of the Evidence Act,
the burden was on the defendant to prove that it was not
real transaction and the real transaction was different.
10) There is evidence of the plaintiff in support of
the aforesaid pleadings and there are aforesaid
circumstances. The record shows that the plaintiff was
cross examined to some extent and after that adjournment
was sought by the learned counsel of the defendant for
plaintiff's cross examination. Reasoned order was made
by the trial Court and it was observed that the defendant
9 SA 1698 of 2005
was not ready to conduct the matter and was protracting
the decision of the suit and order of "no cross" was made.
As no interest was shown to lead evidence, order of
closure of evidence of the defendant was also made by
the trial Court. Subsequently also reasoned orders were
made when application was moved for giving permission
to cross examine and to lead evidence. Specific
observations were made that the defendant was trying to
do everything to protract the decision of the suit. The
tactics played by the defendant are mentioned in various
orders made by the trial Court. Even defence was taken
that evidence cannot be given on affidavit and reasoned
order was made on that application also by the trial Court.
The evidence of the plaintiff was closed in the month of
April 2004 and the suit came to be decided on 13-6-2005.
These circumstances are sufficient to infer that sufficient
opportunity was given to the defendant to take steps but
the defendant took steps only with one intention viz to
protract the decision of the suit. He was in possession and
so it can be said that he was trying to protract the things
intentionally. These circumstances cannot be ignored in a
suit of present nature.
10 SA 1698 of 2005
11) In view of unrebutted evidence and the
aforesaid discussion, this Court has no hesitation to hold
that it was the sale transaction. Both the Courts below
have given such finding and there is no scope to interfere
in the finding given by the Courts below.
12) In respect of other contentions that the plaintiff
was to use only ground floor and the first floor was never
transferred to him it can be said that there was no specific
pleading that the first floor was not transferred. The
defence taken was altogether different which is already
quoted. First time in the argument in this Court it was
submitted that if the sale deed is read as it is, it cannot be
inferred that the first floor of the building was also sold.
This Court has carefully gone through Exhibit 51, the sale
deed. In the sale deed it is specifically mentioned that the
portion of aforesaid CTS number like 27×10 ft was sold
and on this land there was construction of one room
having tin sheet and the construction was around 100
years old. Boundaries of this property are mentioned as
to the East - the remaining portion of property bearing
CTS No.4474/1 belonging to the vendor, to the South the
11 SA 1698 of 2005
remaining portion of the property of the vendor from the
same house, to the West the house of one Ashok
Zunzarkar and to the North public road having width of 30
ft. This portion is marked in red ink in the map annexed
to the sale deed. The boundaries are also written on this
map. Thus, the land admeasuring 27×10 ft. which was
portion of aforesaid CTS number was sold along with the
structure which was present on it though the structure is
described as one room.
13) In view of nature of defence taken by the
defendant it is desirable to see the relevant provisions of
the Transfer of Property Act. In Section 54 of this Act,
transfer of ownership of immovable property is defined as
transfer by a person of his rights and interests which can
be done under registered sale deed when the value of the
property exceeds one hundred rupees. In this regard one
more provision like section 8 of the Transfer of Property
Act is relevant and it reads as under :-
"8. Operation of transfer.-- Unless a different
intention is expressed or necessarily implied, a transfer
of property passes forthwith to the transferee all the
12 SA 1698 of 2005
interest which the transferor is then capable of passing
in the property and in the legal incidents thereof.
Such incidents include, where the property is land,
the easements annexed thereto, the rents and profits
thereof accruing after the transfer, and all things
attached to the earth;
......"
14) These provisions show that the transfer of
ownership of land involves transfer of full rights and
interests of the vendor and there is characteristic of
permanency to such transfer. The transfer takes place as
soon as the document is registered. In view of the
provision of section 8, quoted above, it can be said that
not much importance can be given to the incorrect
description of the structure standing on the land. Such
incorrect description cannot vitiate the sale. If boundaries
are given and they are definite, the land that is conveyed
is the land situated within those specific boundaries along
with structure standing on it. In view of the provision of
section 8, quoted above, if the vendor had no intention to
sell some portion of the property or some part of his
rights, he needs to specifically mention about it in the sale
13 SA 1698 of 2005
deed. In absence of such mention the title in the land
along with title in the structure standing on the land,
passes to the purchaser. In view of this position of law,
nothing could have been achieved by the defendant even
after making the pleadings in that regard and giving
evidence.
15)
One technical point was argued that the
affidavit filed as evidence by the plaintiff was not having
verification and so it cannot be used in view of the various
provisions like Order 18 Rule 4, Order 19 Rule 3, Section
139(b) etc. of the Code of Civil Procedure. This Court has
carefully gone through the said document. It shows that
there was no verification but at least on two occasions
oath was administered to the plaintiff and on first
occasion the contents were verified by the Court. The
affidavit was sworn before the officer of the Court who is
empowered by the High Court to administer oath for this
purpose.
16) The learned counsel for the appellant placed
reliance on some reported cases in support of his
14 SA 1698 of 2005
aforesaid contentions. In the case reported as 2005 (3)
ALL MR 622 Bombay High Court (Shamrao Vishnu Kunjir
v. Suresh Vishnu Kunjir) this Court has discussed the
implications of the amendment made by the Act of 2000 to
the Civil Procedure Code and the provision of Order 18
Rule 4 of the Code. Direction is given by this Court to see
that affidavits are verified and the procedure is followed
from 1-8-2005. The present affidavit was accepted prior to
that date by the trial Court. This single circumstance is
sufficient to reject the proposition made for the present
appellant. Further it is such technical defect which can be
cured with the permission of the Court. This point was
not raised before the Courts below and it was raised first
time in this Court. So there is no force in this contention
also. Reliance was placed by the learned counsel for the
appellant on some more cases reported as :-
(1) (2000) 7 SCC 104 (S. Saktivel v. M. Venugopal Pillai).
(2) (2007) 6 SCC 484 (State of Karnataka v. K.K.
Mohandas).
(3) AIR 1938 All 364 (Govind Behari v. Shujaat-Mand
Khan).
(4) Civil Suit:1963/1997 (Kuldip Mehta v. Jagdip
Mehta) decided by High Court of Delhi on 3-1-
2007.
15 SA 1698 of 2005
(5) Second Appeal No.110 of 1951 (Makhanlal v. Lala
Lakshi Chand) decided by High Court of
Rajathan on 23-7-1953.
The relevant facts of the present case are already
discussed due to facts of the present case, observations
made in the aforesaid cases are of no help to the present
appellant.
17) The
ig learned counsel for the respondent
produced a copy of decision delivered in Special Civil Suit
No.377/2006. This was the suit filed for relief of partition
against the defendant by coparceners and the suit
property was included in the said suit. The learned Civil
Judge Senior Division, Aurangabad dismissed the suit in
respect of the present suit property. It was held that the
suit property was already sold to the present plaintiff.
The plaintiff was party to the said suit. That decision has
become final. This circumstance also can be used against
the present appellant. Thus the present appeal is devoid of
merits. The aforesaid substantial questions of law are
answered against the appellant and the appeal is
dismissed.
16 SA 1698 of 2005
18) The learned counsel for the appellant requests
for continuation of interim relief for some time as he
wants to challenge the decision of this Court. In view of
the conduct of the present appellant quoted above, this
Court holds that such relief cannot be granted in his
favour and so that relief is also refused.
Sd/-
ig (T.V. NALAWADE, J. )
rsl
