Vijaykumar Vithaldas Chandak ... vs Sukhdev Ninaji Rothe Buldhana
2016 Latest Caselaw 2114 Bom

                  sa462.02.odt                                                                                    1/13




                                                                                                               
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         NAGPUR BENCH : NAGPUR.




                                                                                       
                                                  SECOND APPEAL NO.462 OF 2002




                                                                                      
                   APPELLANT:                                              Vijay   Kumar   S/o   Vithaldas   Chandak,
                                                                           aged   about   32   years,   occupation
                   (Original plff) 
                                                                           Agriculturist   and   business   (General
                   on R.A.)
                                                                           Store) R/o Rohana, Tq. Khamgaon Distt.
                                                                           Buldhana.




                                                                      
                    
                                                                                                                 
                                     ig                        -VERSUS-
                                   
                   RESPONDENT:                                             Sukhdev   S/o   Ninaji   Rothe,   aged   about
                                                                           59   years,   Occupation-Agriculturist,   R/o
                   (Original deft) 
                                                                           Rohana, Tq. Khamgaon, Distt. Buldhana.
                   
      

                                                                                                                           
   



                  Shri D. G. Patil, Advocate for the appellant.
                  Shri A. V. Bhide, Advocate for the respondent.





                                                      CORAM: A.S. CHANDURKAR, J.

DATED: 2 nd MAY, 2016.

ORAL JUDGMENT :

1. The original plaintiff who is aggrieved by the judgment

of the appellate Court reversing the decree passed by the trial

Court for possession has filed the present appeal.

2. Land admeasuring 0.86R (2 acres 5 Gunthas) is the

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subject matter of the present proceedings. According to the

plaintiff, the aforesaid property was in possession of the defendant

as owner thereof. On 13-7-1992, the sale deed in respect of

aforesaid land for consideration of Rs.30,000/- came to be

executed by the defendant in favour of the plaintiff. According to

the plaintiff, as there were standing crops in the said land, the

defendant had requested that the possession of the suit field would

be handed over by 15-12-1992. However, as the defendant did

not hand over possession of the field in question, the plaintiff

issued a notice to the defendant on 05-1-1993. The same was

replied on 14-1-1993 by the defendant in which it was stated that

the suit property was joint family property and the defendant was

not the sole owner of the same. On that basis, the plaintiff on

3-2-1993 filed Regular Civil Suit No.21/1993 for possession of the

suit field along with a prayer for mesne profits.

3. The defendant filed his written statement opposing the

claim as made. He took the plea that the property was ancestral in

nature and belonged to the joint family. The defendant alone did

not have any title to sell the same nor was there any legal necessity

on the part of the defendant to alienate the same. A further plea

was taken that the plaintiff was a money lender doing the business

of money lending without having any license in that regard.

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4. Before the trial Court, the plaintiff examined himself

below Exhibit-17. He also examined two attesting witnesses below

Exhibit-25 and 26 in support of his case. The defendant examined

himself at Exhibit-31 as well as other witnesses below Exhibits 32-

5. The trial Court by its judgment dated 9-1-1995 held

that the defendant had sold the suit property to the plaintiff on

13-7-1992 and hence, had title to the same. It further accepted

the case of the plaintiff that the defendant had refused to hand

over possession of the suit field as agreed. It, therefore, decreed

the suit and also granted damages of Rs.1000/-.

6. In the appeal preferred by the defendant, the first

appellate Court held that the sale deed dated 13-7-1992 did not

give valid title to the plaintiff. It did not accept the evidence led

by the plaintiff and, therefore, allowed the appeal setting aside the

decree passed by the trial Court.

On 10-3-2005, the second appeal came to be dismissed

by holding that the same did not give rise to any substantial

question of law. It upheld the judgment of the first appellate

Court. Being aggrieved, the original plaintiff filed Civil Appeal

No.3039/2008. The Hon'ble Supreme Court by its judgment dated

29-4-2008 observed that the question which was required to be

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decided was whether the transaction in question was an out and

out sale or was a loan transaction. It was held that as the relevant

material had not been considered while dismissing the second

appeal, said order was liable to be set aside. Thus, the order

dismissing the second appeal was set aside and the appeal was

remanded for fresh consideration in accordance with law.

7. After the proceedings were remanded, the following

substantial question of law was framed:

ig Whether the finding of the first appellate Court with

regard to the transaction being one of loan is against the evidence

on record and as such perverse?

8. Shri D. G. Patil, the learned Counsel for the appellant

submitted that the finding recorded by the first appellate Court

that the transaction in question was with regard to a loan given by

the plaintiff to the defendant was not substantiated by any

evidence whatsoever. He submitted that the document dated

13-7-1992 was a registered sale deed at Exhibit-18. According to

him, the said document was voluntarily executed by the defendant

after accepting the consideration of Rs.30,000/-. The transaction

was completed in the presence of the Registrar and the same was

never questioned. According to him, there was no evidence

whatsoever to indicate that the execution of the said document

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was the outcome of a loan transaction. He then submitted that the

sale was executed only in respect of 0.86R land by demarcating

the boundaries. The plea that the mother of the defendant -

Gangubai was also a joint owner of the suit property was raised

only to defeat the claim of the plaintiff. Even if it was assumed that

she had a share in the land, it was to be noted that the total land

admeasured 2H 96R while the sale deed was in respect of only

0.86R. The evidence on record indicated that in the year 1974

itself said Gangubai had sold part of her share of the land by

executing a sale deed. He, therefore, submitted that in absence of

any evidence to indicate that the transaction was a loan

transaction, the appellate Court was not justified in reversing the

decree passed by the trial Court. In any event, it was submitted

that the document in question would bind the defendant to the

extent of his share in the suit land and considering the fact that

only 0.86R land had been sold, the rights of Gangubai would not

be affected. In support of his submissions, he placed reliance on

the judgment of the Hon'ble Supreme Court in Kartar Singh V.

Harjinder Singh and others AIR 1990 SC 854 and Ramdas v. Sitabai

and others (2009) 7 SCC 444. He, therefore, submitted that the

decree passed by the trial Court was liable to be restored.

9. Shri A. V. Bhide, the learned Counsel for the

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respondent on the other hand supported the impugned judgment.

According to him, the defendant was the karta of the joint family

and was not entitled to alienate the land in question in absence of

any legal necessity. He submitted that there was no evidence led

by the plaintiff with regard to the legal necessity on the part of the

defendant to alienate the suit property. No enquires were made by

the plaintiff about the title to the said property. This fact was

admitted by the plaintiff in his cross-examination. He further

submitted that the fact that the possession had not been handed

over after executing the sale deed itself indicates that the

transaction was not one of sale. According to him, the share of

Gangubai could not have been sold by the defendant. By relying

upon the judgment in Muddasani Sarojana v. Muddasani Venkat

Narsaiah and others AIR 2007 AP 50, he submitted that the aspect

regarding delivery of possession was material and in absence

thereof the document at Exhibit-18 could not have been

considered. He also placed reliance on the judgment of the

learned Single Judge in Bhimrao S/o Kondiba Bhosale and others

vs. Ankush S/o Ranganath Khadke and others 2012 (6) Mah.L.J. 88

and the judgment in M/s Uma Kant and Co. Ltd. v. Niranjan Prasad

Mahesh and others AIR 2006 Rajasthan 46.

Without prejudice, it was submitted that even if the

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suit was decreed, the same could have been only to the extent of

the share of the defendant and the decree could not bind

Gangubai. He, therefore, submitted that the appellate Court was

justified in reversing the decree passed by the trial Court.

10. I have heard the respective counsel for the parties at

length and I have given due consideration to their respective

submissions. The document at Exhibit-18 is the sale deed dated

13-7-1992. The stamp paper for the said transaction is shown to

have been purchased by the defendant who had signed thereon.

In the said document, the property sold is described as being

owned by the defendant which was falling in his share. The said

property is also described by giving its boundaries. On the

northern boundary was the land that was belonging to his mother

Gangubai. The sale deed was registered and there were two

attesting witnesses namely Kisan Gopal Agarwal and Samadhan

Satav to the document. In this regard, it is to be noted that the

defendant in his cross examination has accepted his signatures on

the stamp papers as well as the sale deed. He has further admitted

that he had gone to the office of the Registrar to have the sale

deed registered. He was knowing the attesting witnesses as they

were residing in the same village. Both the attesting witnesses -

Kisan Gopal Agarwal and Samadhan Satav were examined by the

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plaintiff. They have deposed about the execution of the document

and payment of the amount of consideration to the defendant.

Aforesaid is the evidence with regard to the manner in

which the document at Exhibit-18 was executed by the defendant.

The ratio of the decision in Maddasani Sarojana (supra) cannot

apply to the present facts in view of the admitted position that the

plaintiff did not receive the possession immediately after execution

of the sale deed.

ig While examining the stand of the defendant that the

document in question was executed by way of security for a loan,

it is to be noted that in the written statement a plea was taken in

para 13 that the plaintiff was a money lender indulging in such

business without having a valid licence. It was pleaded that the

defendant had various transactions with the plaintiff and on each

occasion the amounts borrowed had been returned. The plaintiff

was cross-examined by the defendant wherein the plaintiff has

stated that except the credit granted by him in the grocery shop,

he was not having any transaction with the defendant. In the

evidence led by the defendant, he has stated that he had borrowed

some amount for his daughter's marriage. As he was in need of

some more money and as certain amounts borrowed earlier were

still to be repaid, the document in question came to be executed.

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In his cross-examination, he stated that in April, 1992 an amount

of Rs.2000/- to 3000/- had been borrowed from the plaintiff but

said fact was not pleaded in the written statement. Similarly, the

defendant has examined Jagdeo Khandare and Shama Khandare

who deposed that the plaintiff was having a grocery shop and

certain agricultural fields. It was stated that he was doing money

lending business. In the cross-examination it was suggested to said

witnesses that they were close to the family of the plaintiff. This is

the evidence that is available on record to substantiate the plea of

loan transaction.

12. From the aforesaid, it is clear that the execution of the

sale deed dated 13-7-1992 has not been specifically denied by the

defendant. On the contrary, the defendant has admitted that he

had gone to the office of the Registrar for executing said document

voluntarily. He was acquainted with both the attesting witnesses.

He continued in possession as there were agricultural crops

standing on the land and it is only after notice dated 5-1-1993 that

the stand that the property was joint family property was raised by

the defendant. If this evidence is considered along with the stand

of the defendant that said document was executed as security for a

loan transaction, it is found that there is no substantial evidence

on record to substantiate the same. It was vaguely pleaded in the

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written statement that the plaintiff was a money lender and the

defendant had various transactions with the plaintiff. Except these

pleadings, there is no specific evidence on record led by the

defendant to justify the same. The defendant in his cross-

examination admitted that there were various transactions

between the parties and that he failed to plead about the same in

his written statement. There is no evidence led that the plaintiff

was habitually engaged in the business of money lending and that

he had transactions with various people. In short, there is no

sufficient evidence led by the defendant to indicate that

transaction dated 13-7-1992 was by way of security for a loan.

13. The appellate Court has not recorded any specific

finding in that regard. On the contrary, the appellate Court has

proceeded on the basis that it was likely that the defendant might

have purchased some grocery articles for his daughter's marriage

from the shop of the plaintiff. As the amounts were not repaid,

it was likely that the plaintiff insisted upon him to execute the

document and hence, the defendant might have agreed to execute

such document. These observations can be found in para 7 of the

judgment of the appellate Court. However, in absence of any clear

evidence to indicate the fact that the sale deed dated 13-7-1992

was a document executed as security for loan transaction, such

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finding could not have been recorded. In fact, the appellate Court

has not even recorded a categorical finding that the trial Court had

erroneously came to the conclusion that the transaction was not

one of loan. The appellate Court merely on the basis of surmises

has proceeded to hold that it was likely that the defendant did not

intend to sell the suit land.

14. Even on the aspect of the receipt of consideration of

Rs.30,000/- reference thereto has been made in the document at

Exhibit-18. The defendant in his deposition at Exhibit-31 has not

stated that such amount was never received or that what has been

stated in Exhibit-18 in that regard was incorrect. The plaintiff had

admitted that only the accounts of the grocery shop were

maintained. The appellate Court in para 10 of its judgment has,

however, held otherwise in absence of any evidence whatsoever.

15. As regards the stand of the defendant that his mother

Gangubai also had a share in the suit property, it is to be noted

that the property sold had been demarcated by indicating its

boundaries. Except the plea that the mother of the defendant also

had a share in the land in question, the defendant has not led any

specific evidence to indicate the total properties owned by the joint

family and the respective shares of the family members. The

defendant in his deposition stated that Gat No.512 was

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admeasuring 7 acres 13 gunthas and his mother Gangubai had half

share in said property. Reference was made to the same in 7/12

Extracts in his cross-examination. Revenue records by themselves

cannot be treated as documents of title. Even if it is assumed that

the defendant's mother had half share in the said land which was

admeasuring 7 acres 13 gunthas, it is to be noted that a portion

less than half was sold on 13-7-1992 by the defendant. The land

sold was admeasuring 2 acres and 5 gunthas which is lesser than

half of 7 acres 13 gunthas. Moreover, the portion sold has been

demarcated by giving boundaries and on the northern boundary

the land falling to the share of the defendant's mother was

situated. In this background, therefore, the stand as sought to be

pleaded by the defendant cannot be accepted. Even otherwise as

held by the Hon'ble Supreme Court in Kartarsingh and Ramdas

(supra) to the extent of the share of the defendant, the plaintiff

would be entitled to succeed. However, considering the clear

admission of the defendant that his mother had half share in the

entire Gat No.512 and the portion sold being less than half, the

plaintiff would be entitled for the decree of possession.

The decision in M/s Uma Kant (supra) relied upon by

the learned Counsel for the respondent and the ratio therein

cannot be applied to the facts of the present case especially when

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the land sold is less than the total of the entire land which was

stated to be owned by two persons. Similarly, the decision in

Bhimrao Bhosale (supra) on the aspect of burden to prove legal

necessity cannot assist the defendant in absence of any factual

foundation.

16. In view of aforesaid discussion, the substantial

question of law as framed is answered by holding that the finding

of the first appellate Court that the transaction in question was one

of loan is against the evidence on record and hence perverse.

Hence, the judgment dated 17-7-2002 passed in Regular Civil

Appeal No.37/1995 is set aside. The judgment dated 9-1-1995 in

Regular Civil Suit No.21 of 1993 stands restored. The second

appeal is allowed in aforesaid terms with no order as to costs.

JUDGE

//MULEY//