Bombay High Court
Kailas Manik Aroo And Another vs Kausalyabai Rameshwar Sarda And ... on 24 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.229 of 2007
AND
Second Appeal No.230 of 2007
A. Second Appeal No. 229 of 2007 :
1. Kailas son of Manik Aroo,
since dead, through his
legal heirs :-
1-a. Smt. Santoshi widow of Kailas Aroo,
aged about 40 years,
occupation Housewife,
1-b. Ku. Anju daughter of Kailas Aroo,
aged about 19 years,
occupation Student,
1-c. Vaibhav son of Kailas Aroo,
aged about 16 years,
occupation Student,
through next guardian mother -
Applicant no.1,
all residents of Rithad,
Tq. Risod,
Distt. Washim-444 510.
2. Manik son of Bhagwan Aroo,
aged about 54 years,
occupation - Agriculturist,
resident of Rthad,
Tq. Risod, Distt. Washim. ..... Appellants.
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Defendants.
Versus
1. Kausalyabai Rameshwar Sarda,
since dead, through her
legal heir :-
1-a. Girdharilal Rameshwar Sarda,
aged about 63 years,
occupation - business,
resident of Lal Bahadur Shastri
Colony, Washim,
Tq. & Distt. Washim-444 510.
.....Original Plaintiff.
2. Narayan son of Ananda Aroo,
aged about 44 years,
occupation - Agriculturist,
resident of Rithad,
Tq. Risod, Distt. Washim.
.....Original Defendant no.3. ..... Respondents.
*****
Mr. V. K. Paliwal, Adv., for the appellants.
Mr. C.A. Joshi, Adv., for respondent no.2.
*****
B. Second Appeal No. 230 of 2007 :
1. Kailas son of Manik Aroo,
since dead, through his
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legal heirs :-
1-a. Smt. Santoshi widow of Kailas Aroo,
aged about 40 years,
occupation Housewife,
1-b. Ku. Anju daughter of Kailas Aroo,
aged about 19 years,
occupation Student,
1-c. Vaibhav son of Kailas Aroo,
aged about 16 years,
occupation Student,
through next guardian mother -
Applicant no.1,
all residents of Rithad,
Tq. Risod,
Distt. Washim-444 510.
2. Manik son of Bhagwan Aroo,
aged about 54 years,
occupation - Agriculturist,
resident of Rithad,
Tq. Risod, Distt. Washim. ..... Appellants.
Defendants.
Versus
1. Kausalyabai Rameshwar Sarda,
....Deleted as per Court's order
dated 24-8-17.
2. Girdharilal Rameshwar Sarda,
aged about 76 years,
occupation - Agriculturist,
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resident of Lal Bahadur Shastri
Colony, Washim,
Tq. & Distt. Washim-444 510. ..... Respondents
Defendants
*****
Mr. V. K. Paliwal, Adv., for the appellants.
Mr. C.A. Joshi, Adv., for respondent no.2.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 24th August, 2017
ORAL JUDGMENT:
01. Since both these appeals arise out of a common judgment of
the first appellate Court, they are being decided by this common
judgment. For the sake of convenience, the parties are referred to as
"the appellants and respondents" as per the cause title in the appeals.
02. The appellants are the plaintiffs in Regular Civil Suit No. 43
of 1999 that has been filed for specific performance against the
respondents. It is the case of the appellants that Kailas had taken a
hand loan of Rs. 10,000/- from Kausalyabai and had agreed to pay
Rs.5,000/- as interest on that amount within a period of three years.
According to the appellants, a nominal sale-deed was executed by
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Kailas in favour of Kausalyabai. Though Kailas was willing to pay back
the amount of Rs.15,000/-, the land was not being re-conveyed.
Hence, suit for specific performance came to be filed by Kailas.
03. The respondent no.1 - Kausalyabai filed Regular Civil Civil
Suit No. 56 of 1999 against Kailas and his father for a declaration that
she was the owner of Gat No. 840 along with further relief of perpetual
injunction. According to her, Gat No. 840 was purchased for a
consideration of Rs.30,000/- on 29th June, 1995 from Kailas.
04. Both the suits were tried together and after common
evidence was led, the trial Court held that the appellants had failed to
prove that the transaction dated 29th June, 1995 was by way of
security for advancing a loan of Rs.10,000/-. It was held that the
appellants had failed to prove the agreement of re-conveyance. It was
further held that the respondent no.1 had failed to prove that by
playing fraud, Gat No. 892 was sold, instead of Gat No. 840. The trial
Court, therefore, decreed the suit filed by the respondents and
dismissed the suit filed by the appellants. The respondent no.1 was
held to be owner of Gat No. 840 and not 892. Further order of
perpetual injunction was also passed.
The appellants filed two appeals against the aforesaid
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judgment. The appellate Court by the impugned judgment dismissed
both the appeals. Hence, the appellants have filed the aforesaid
Second Appeals.
05. Both the appeals were admitted by framing the following
substantial questions of law:-
"1] Whether the Courts below have failed to
consider the material question as regards to the
exact description of the property allegedly sold
to Kausalyabai?
2] If there was no proper description, could the
findings of the Courts below said to be
perverse?"
06. Shri V. K. Paliwal, learned counsel for the appellants,
submitted that both the Courts committed an error while holding that
the sale-deed dated 29th June, 1995 was with regard to Gat No. 840.
According to him, what was sold was Gat No. 892 and not Gat No. 840.
Though it was the case of the respondents that the vendor had played
fraud while executing the sale-deed, such fraud was not duly proved.
Only on the assumption that there was a mistake committed that the
decree came to be passed. The respondent no.1 did not enter the
witness box and her son was examined on her behalf. He did not have
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complete knowledge of the transaction and, therefore, no decree could
have been passed in favour of the respondents. In absence of proper
description of the suit property, it could not have held that what was
intended to be sold was Gat No. 840 and not Gat No. 892. He further
submitted that the evidence led by the appellants to indicate loan
transaction between the parties was not appreciated properly. This
has vitiated the judgments of both the Courts. It was, therefore,
submitted that the suit filed by the appellants was liable to be decreed
and suit filed by the respondents was liable to be dismissed.
07. Shri C.A. Joshi, learned counsel for the respondent no.2,
supported the impugned judgments. According to him, both the Courts
had rightly considered the evidence on record while holding in favour
of the respondents. The boundaries of the property sold as mentioned
in the sale-deed were boundaries of Gat No. 840 and, therefore, it was
obvious that mention of Gat No. 892 was a mistake. The father of the
appellant - Kailas had admitted that Rs.30,000/- had been paid in lieu
of execution of the sale-deed. The son of Kausalyabai was aware of
the transaction and, therefore, he had deposed on her behalf. It was,
thus, submitted that as the loan transaction was not proved, the
decree has been rightly passed in favour of the respondents.
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08. I have heard the learned counsel for the parties at length
and also perused the evidence on record.
09. Sale-deed dated 29th June, 1995 at Exh.46 is a registered
document. The property sold is described as "Gat No.892". It is the
case of the respondents that what was sold was Gat No. 840. In this
regard, if the prayers in the plaint of Regular Civil Suit No. 43 of 1999
are seen, the relief has been sought by the appellants with regard to
Gat No.840. Mutation entry Exh.49 indicates that Gat No. 840 was
sold to the vendor - Kailas and that he was never concerned with Gat
No. 892. It has been found that the witnesses examined by the
appellants have not denied the boundaries of the suit property. It is
well settled that if there is a dispute with regard to the numbers of the
properties, then the boundaries thereof would prevail. The witness
examined on behalf of Kausalyabai has deposed about the boundaries
which tallied with the boundaries as mentioned in the sale-deed.
Considering the overall evidence on record, I do not find that both the
Courts committed an error in holding what was sold was Gat No. 840
and it was wrongly described as Gat No. 892.
10. Though it was initially pleaded that a fraud was practised by
the vendor while executing the sale-deed, it has been rightly found
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that there was no such evidence of any fraud. The fact remains that
on account of mistake in description, the property is shown as Gat No.
892.
11. As regards submission that Girdharilal was not aware about
the transaction and the suit property, said contention cannot be
accepted when his entire evidence is taken into consideration. He is
the son of Kausalyabai and, therefore, it has been rightly held that that
it was not necessary for him to have a Power of Attorney in his favour.
12. As regards the defence that the transaction was one of
money lending, the father of Kailas admitted that Rs.30,000/- were
received when the sale-deed was executed. This witness was
examined before Kailas was examined and in that background, both
the Courts have arrived at a conclusion that the defence as regards
money lending transaction has not been proved. The witnesses
examined by the appellants have clearly admitted that the transaction
did not take place in their presence. Hence, I find that appreciation of
evidence in that regard by both the Courts is in accordance with law
and same cannot be termed as perverse.
13. As a result of the aforesaid discussion, the substantial
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questions of law are answered by holding that both the Courts have
rightly held that the property sold to Kausalyabai was Gat No. 840.
This was clear from the boundaries of Gat No. 840 that were brought
on record. Consequently, I do not find any reason to interfere with the
impugned judgments. The appeals are, therefore, dismissed with no
order as to costs.
Judge
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