Bombay High Court
Ramrao S/O Bhauji Bhagat & Ors vs Annapurnabai W/O Sadashio ... on 17 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 184 OF 1995
1] Ramrao Bhauji Bhagat
(since deceased, through L.Rs)
1-A] Sanjay Ramrao Bhagat,
aged 37 years, Occ. Business,
1-B] Vivek Ramrao Bhagat,
aged 25 years,
Both R/o. Godbole Plots, Dabki Road,
Akola.
1-C] Sau. Vandana Murlidhar Bhakare,
aged 33 years, R/o. Laxmi Nagar,
Nigadi Pune, at present R/o. Godbole
Plots, Dabki Road, Akola.
1-D] Sau. Archana Gajanan Aaware,
aged about 29 years, R/o. Ganesh
Nagar, Dabki Road, Akola.
2] Sau. Kusum Ramrao Bhagat,
aged about 49 years, H/H Work,
Agriculturist, R/o. Akola Dabki Road.
3] Sau. Pushpabai Uttam Sarode,
aged about 33 years, H/H Work,
R/o. Kalyan (East), Distt. Thane... APPELLANTS
...VERSUS...
1] Smt. Annapurnabai Sadashiv Deokumbi
(Deceased) through L.Rs
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1a] Sadashiv Namdeo Deokunbi,
aged about 40 years, Occ. Agriculturist,
Husband of deceased Annapurnabai
1b] Ananta Sadashiv Deokunbi,
aged Adult, Occ. Agriculturist,
son of deceased Annapurnabai.
1c] Sau. Manda Ramdas Thakare,
aged Adult, Occ. Household Work,
Daughter of deceased Annapurnabai,
All R/o. Village Punoti, Tq. Barshitakli,
Distt. Akola.
2]
Sumanbai Awadhut Molkar,
Aged about 50 years, R/o. At Post
Shivaji Nagar, Wadgaon, Tq. Belapur,
Distt. Akola.
3] Chaya Avadhut Molkar,
aged about 40 years, C/o. Sumanbai
Avadhut Molkar, R/o. At Post
Shivaji Nagar, Wadgaon, Tq. Belapur,
Distt. Akola.
4] Janardhan Bhauji Bhagat
(Deceased through L.Rs)
4A] Smt. Sushila Janardhan Bhagat,
aged about 70 years,
4B] Sh. Dattatreya Janardhan Bhagat,
aged about 40 years,
4C] Shri Digambar Janardhan Bhagat,
aged about 37 years,
All R/o. Bhandaraj Khurd, Tq. Patur,
Distt. Akola.
4D] Sau. Pingalabai Manikrao Bhatkar,
aged about 52 years, R/o. Patkhed,
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Tq. Barshitakli, Distt. Akola.
4E] Sau. Jyoti Baburao Bhambere,
aged about 45 years, R/o. Dhamana,
Post Khambora, Tq. And Distt. Akola.
4F] Sau. Mala Suresh Pohare,
ageda bout 42 years, R/o. Ural,
Tq. Balapur, Distt. Akola....... RESPONDENTS
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Shri S.C.Mehadia, Advocate, for Petitioner.
Shri V.P.Panpalia, Advocate for Respondent nos. 2 and 3
None for respondents.
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CORAM: R. K. DESHPANDE, J.
DATE OF RESERVING THE JUDGMENT : 14 th
OCTOBER 2016
th
DATE OF PRONOUNCING THE JUDGMENT: 17 OCTOBER 2016
1] In Special Civil Suit No. 183 of 1987, the trial
Court passed a decree on 28.03.1991 holding that the
plaintiff do recover the possession of the suit property from
the defendants along with an amount of Rs.9,000/- as past
mesne profit. An enquiry under Order XX, Rule 12 of C.P.C
has also been directed to be made. Regular Civil Appeal No.
125 of 1991 preferred by the original defendant Nos. 1, 2
and 3 and Regular Civil Appeal No. 127 of 1991 preferred by
one Yeshwant against the decision in Regular Civil Suit
No.230-A of 1991, were decided by the lower appellate Court
by common judgment and order dated 24.03.1995. Appeal
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No. 125 of 1991 was partly allowed by setting aside the
judgment and decree passed by the trial Court in Special
Civil Suit No. 183 of 1987 to the extent of recovery of
damages of Rs.9,000/-, but rest of the judgment and decree
passed by the trial Court was confirmed. Regular Civil
Appeal No. 127 of 1991 was dismissed. This second appeal
is preferred by the original defendant Nos. 1, 2 and 3.
2] The undisputed factual position can be stated as
under;
The dispute in the suit in question pertains to the
land Survey No. 14, situated at Bhandaraj, Tq. Patur, Distt.
Akola, owned by the plaintiff Awadhut Natthuji Molkar. The
plaintiff alleged in the plaint that the registered sale deed
dated 02.02.1983 was executed in the name of defendant
No.2 Sau. Kusum Ramrao Bhagat and defendant No.3
Sau.Pushpabai Uttam Sarode by way of security for loan
amount of Rs.6,000/- in respect of area of 2.43 HR from the
eastern side of Survey No. 14. Thereafter two separate sale
deeds dated 25.05.1984 were obtained by the defendant
Nos.1 and 2, who are the husband and wife, in their separate
names, in respect of area of 1.23 HR and 1.21 HR
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respectively by way of security to advance the loan to the
plaintiff to meet the expenses for medical treatment of
paralysis. The plaintiff alleged that all the 3 sale deeds were
nominal, by way of security for loan and the plaintiff
continued to be in possession of the suit property till the
month of September, 1985, when the defendants
dispossessed the plaintiff from the suit property. The
defendants denied the claim of the plaintiff and took the
stand that the sale deeds were executed by the plaintiff for
valuable consideration and the transactions were out and out
sale.
3] The Courts below have recorded the finding that
the plaintiff has proved execution of sale deed dated
02.02.1983 for security of loan of Rs.6,000/- in favour of
defendant Nos. 2 and 3 and it is also proved that the plaintiff
agreed to repay the loan of Rs.12,000/- inclusive of the
principal amount of Rs.6,000/-. The Courts have further held
that the subsequent two sale deeds of the same date i.e.
25.05.1984 were also nominal, for security of the loan and
the actual area covered by the sale deeds dated 25.05.1984
was not in existence. The Courts have held that the plaintiff
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has established his dispossession by the defendants from the
suit property on the basis of the order of injunction passed in
Regular Civil Suit No. 72 of 1983 and hence, the plaintiff is
entitled to possession of the suit properties.
4] On 29.06.1985, this Court admitted the matter
and passed the following order.
ig "Admit as substantial question of law as
enumerated under grounds in the memo of appeal
arise for consideration.
Interim stay as prayed"
5] The substantial questions of law in the
memorandum of appeal are from ground (a) to (m) and the
perusal of it would reveal that this Court is required to hear
the second appeal as if it is hearing the special civil suit. Shri
Mehadia, the learned counsel appearing for the appellant is,
therefore, asked to address this Court on the specific
substantial questions of law.
6] It is urged by Shri Medadia that in the absence of
their being any prayer for setting aside the sale deeds, the
suit in question was not maintainable. It is his further
submission that the transactions in question were not void
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but were voidable in terms of Section 19 of the Indian
Contract Act and therefore, there should have been a prayer
for setting aside the sale deed and the suit should have been
filed within a period of three years in terms of Article 59 of the
Limitation Act. He submits that the suit having not been filed
within 3 years from the date of transaction of sale, it is
required to be dismissed as barred by time as prescribed
under Section 3 read with Article 59 of the Limitation Act.
7] Shri Mehadia further submits that the Courts
below have recorded the finding that the sale deeds were the
money lending transactions by the defendants without
holding the valid license of money lending and therefore,
such an issue should have been framed by the trial Court.
He submits that the case of the plaintiff is that, the defendant
Nos. 2 and 3 who have purchased the part of the suit
property by registered sale deed dated 02.02.1983 were not
the agriculturists and in the absence of the permission of the
Collector, as required by Section 89 of the Bombay Tenancy
and Agricultural Lands (Vidarbha Region) Act, the same was
void. He submits that on both these aspects no issues were
framed by the trial Court, which has caused serious prejudice
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to the appellants.
8] It is further urged that the Courts below should
have dismissed the suit for misjoinder of parties and
misjoinder of causes of action. He further submits that the
trial Court has consolidated the suits and the common
evidence has been led, which has caused serious prejudice
to the defendants. He further submits that the findings
recorded by the Courts below to hold that the transactions
evidenced by all the three sale deeds were nominal and by
way of security for loan are perverse and not supported by
any evidence available on record.
9] The aspects of misjoinder of parties and
misjoinder of causes of action are governed by Order I, Rules
8, 9 and 13 and Order II, Rule 3 and 7 of C.P.C. It is not the
case of non-joinder of necessary parties. Be that as it may,
Order I, Rule 9 states that no suit shall be defeated by
reason of misjoinder or non-joinder of party and the Court
may in every suit deal with the matter in controversy so far as
regards the rights and interests of the parties actually before
it. Order I, Rule 13 states that all the objections on the
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ground of non-joinder or mis joinder of parties shall be taken
at the earliest possible opportunity and, in all cases where
the issues are settled, at or before such settlement, unless
the ground of objection has subsequently arisen, and any
such objection not so taken shall be deemed to have been
waived.
10] Order II, Rules 3 and 7 under C.P.C being
relevant are reproduced below.
O.II R.3 Joinder of causes of action - (1) Save as
otherwise provided, a plaintiff may unite in the same
suit several causes of action against the same
defendant, or the same defendants jointly; and any
plaintiffs having causes of action in which they are
jointly interested against the same defendant or the
same defendants jointly may unite such causes of
action in the same suit.
(2) Where causes of action are united, the
jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate
subject matter at the date of instituting the suit.
R.7 - Objections as to misjoinder. - All objections
on the ground of misjoinder of causes of action shall
be taken at the earliest possible opportunity and, in
all cases where issues are settled, at or before such
settlement, unless the ground of objection has
subsequently arisen, and any such objection not so
taken shall be deemed to have been waived.
11] Shri Mehadia, the learned counsel for the
appellants does not dispute that no such objections were
raised regarding misjoinder of parties or misjoinder of causes
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of action either before the trial Court or before the lower
appellate Court. In view of the provision of Order I, Rule 14
and Order II, Rule 7 of C.P.C., the objections are deemed to
have been waived.
12] Apart from this, Section 99 of the Code of Civil
Procedure being relevant is reproduced below.
"99. No decree to be reversed or modified for
error or irregularity not affecting merits or
jurisdiction. - No decree shall be reversed or
substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder
[or non-joinder] of parties or causes of action or any
error, defect or irregularity in any proceedings in the
suit, not affecting the merits of the case or the
jurisdiction of the Court.
Provided that nothing in this section shall apply to
non-joinder of a necessary party".
It is thus apparent from the aforesaid provision that no decree
shall be reversed or substantially varied, nor shall any case
be remanded, in appeal on account of misjoinder or non-
joinder of parties or causes of action or any error, defect or
irregularity in any proceeding in the suit, not affecting the
merits of the case or the jurisdiction of the Court. In view of
this provision, no substantial question of law arises for
consideration in this second appeal on account of misjoinder
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of parties or causes of action in the suit in question.
13] Shri Mehadia, the learned counsel for the
appellants has fairly conceded that if the findings recorded by
the Courts below that the sale deeds were the nominal and
by way of security for the loan transaction, it would not be
necessary to incorporate the prayer for setting aside such
sale deed as the transactions would be void. He further
submits that the findings recorded by the Courts below that
the sale deeds in question were nominal and by way of
security for the loan transaction are perverse and liable to be
set aside and this is the substantial question of law involved
in the present matter.
14] With the assistance of the learned counsels
appearing for the parties, I have gone through the findings
recorded by the Courts below on the aspect of perversity.
Both the parties have led oral as well as documentary
evidence. The Courts below have held that the plaintiff has
admitted the execution of sale deeds and therefore, the
burden automatically shifts upon him to prove the facts by
leading satisfactory evidence that the sale deeds were
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executed for security of loan obtained by him from defendant
No. 1 through defendant No.4. Both the Courts below have
considered the evidence of witnesses examined by the
parties and it is held that the version of the plaintiff is
supported by DW-1 Yeshwant, attesting witness on the sale
deed examined by the defendants. The inconsistency in the
evidence of defendant No.1 and his another witness DW-2
Damodhar has been considered and their version is
disbelieved. The trial Court as well as lower appellate Court
have taken into consideration the demeanor of the witnesses
examined and it is held that the sale deeds contain a recital
that the plaintiff was in need of money to meet the medical
expenses for paralysis attack which he had suffered and DW-
1 Yeshwant, the attesting witness, has admitted this fact.
15] The Courts have also taken into consideration
the report of the handwriting expert Shri T.P.Patel examined
at Exh. 67 to hold that the sale deeds dated 25.05.1984 did
not bear the signatures of the plaintiff. The Courts have held
that there is a discrepancy in the matter of evidence on the
aspect of payment of consideration as reflected in the sale
deeds and the evidence led by the defendants is not found to
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be trustworthy. The findings recorded by the Courts below
are based upon appreciation of evidence and at any rate, it is
a possible view of the matter, holding that the sale deeds
executed were nominal and by way of security for the loan
advanced by the defendant No.1 to the plaintiff. The Courts
have held that though the sale deeds are in the name of
different parties, the amount of loan was advanced by
defendant No.1. There is no perversity in recording such
finding.
16] Once it is held that the transactions in question
were void, the bar of limitation prescribed under Section 3
read with Article 59 of the Limitation Act would not be
attracted. The aspect of consolidation of suits for leading
common evidence is merely an irregularity which would not
give rise to any substantial question of law in view of Section
99 of C.P.C. Apartment from this, Shri Mehadia, the learned
counsel could not point out the actual prejudice caused by
adopting such procedure.
17] In view of above, there is no substantial
question of law which arises for consideration of this Court.
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The second appeal is, therefore, dismissed.
LATERON
At this stage Shri Mehadia, the learned counsel
appearing for the appellant submits that the interim order of
stay of possession was operating till this date and hence, the
same may be continued for further period of six weeks.
The interim protection of possession shall
operate for further period of six weeks, after expiry of which it
shall stand automatically vacated without reference to the
Court.
JUDGE
Rvjalit
