Bombay High Court
Ramdas Waydhan Gadlinge vs Gyanchand Nanuram Kriplani on 8 March, 2016
Bench: A.B. Chaudhari
sa.275.01
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 275/2001
Ramdas Waydhan Gadlinge
(Since deceased ) Through LRs.
1) Smt. Vatsalabai Ramdas Gadlinge
Aged 50 years,
2) Sanjay s/o Ramdas Gadlinge
Aged 33 years
3) Vijay s/o Ramdas Gadline
Aged 33 years
4) Sau. Vandana kailashrao Naik
Aged 32 years
All 1 to 4 R/o Ketan Nagar
Akola Tq. & Dist. Akola.
(Amendment carried out
as per order dtd. 16.6.2004) ... APPELLANTS
v e r s u s
Gyanchand Nanuram Kriplani
Dead :Through LRs :
1A Dhrupadabai wd/o Gyanchand Kriplani
1B Pramod Gyanchand Kriplani
1C Varsha D/o Gyanchand kriplani
All R/o Sindhi Camp, Akola
Dist.Akola.
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(Amendment as per court order
dated 18.04.2015). .... RESPONDENTS
...........................................................................................................................
Mr. P.B. Patil, Advocate for the appellant
Mr. S.A.Mohta, Advocate for LRs of respondent i.e. 1A to 1C
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 8th March, 2016
ORAL JUDGMENT:
1. Following were the questions of law framed by this Court
while admitting the Second Appeal on 21.7.2004 :-
"(1) Is the judgment of appellate court erroneous
being based on erroneous formulation of points for
determination since the question relating to nature of
transaction was not framed.
(2) Is the judgment of appellate court sustainable in
the background that findings of fact as recorded by trial court
are set aside without holding that those are illegal erroneous and
unsustainable ?
3) Are findings recorded by first appellate Court
liable to be regarded as perverse?"
2. Having heard the learned counsel for the rival parties and after
perusal of the record and evidence - oral as well as documentary, I record
the following findings :-
Regarding Question No.1 framed by this Court, I find from the
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judgment of the lower Appellate Court that though it is true that a specific
point was not framed about the nature of transaction, the point No.1 framed
by the lower Appellate Court would certainly cover the issue. Not only that,
the discussion made by the lower Appellate Court, and considering the
arguments made by both the sides, amply shows that the Appellate Court
did consider the plea regarding money lending etc., issuance of cheque in
the name of plaintiff etc. and then returned a finding that the sale deed was
not executed by the appellant/defendant by way of security for the loan as
contended by the appellant. I have checked the finding of fact and I find no
reason to differ with the learned Judge of the lower Appellate Court. Hence
the Question No.1 will have to be answered in the negative.
3. As regards Question No.2, I find that the judgment of the lower
Appellate Court is in all details and reasons have been recorded by the lower
Appellate Court on the relevant points relating to the nature of transaction.
The submission made by the learned counsel for the appellant as to the issue
of possession that the lower Appellate Court has not given details to meet
the reasons of the learned trial Judge, in my opinion, would make no
difference for the simple reason that the sale deed was obtained by the
respondent on 1.10.1992 and when he went to take the possession of suit
property on 15.07.1994, he found that the appellant /defendant had re-
entered the property purchased by him. Thus, there was only a span of two
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years between the sale deed and the respondent finding the appellant making
an entry into the house with the help of some other persons. In that view of
the matter, I do not think that the possession of appellant or his agents
particularly when the respondent's possession was legal and having a valid
title by way of sale deed would be of any consequence or relevance. That
being so, the Question No.2 also will have to be answered in the negative.
4. In view of the answers to the above Question Nos. 1 and 2 and
having found that the findings of fact recorded by the lower Appellate Court
are in accordance with the facts and evidence on record, I do not think that
Question No.3 would be answered in the affirmative and, therefore, I find
that the finding of facts recorded by the lower Appellate court are not
perverse. The Question No.3 therefore is answered in the negative. In the
result, I do not find any merit in this Appeal and the same deserves tobe
dismissed. Hence the following order.
ORDER
1) Second Appeal No. 275/2001 is dismissed.
2) No order as to costs.
JUDGE
sahare
