Ramesh Chudaman Bhujade, ... vs Waman Jairam Yerane & 4 Others
2017 Latest Caselaw 2944 Bom

              sa120.03.odt                                                                                      1/7

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

                                              SECOND APPEAL NO.120 OF 2003

               APPELLANT:                             Nanaji   S/o   Antaram   Chaudhari,   aged
                                                      about 53 years, Occu. Cultivator, R/o At
                                                      Post-Nilaj,   Tah.   Brahmapuri,   District:
                                                      Chandrapur.
                                                                                                               
                                                           -VERSUS-

               RESPONDENTS: 1.                                         Indira   W/o   Uddhao   Bode,   Aged   about
                                                                       48 years, R/o Kitadi, Tah. Armori, Distt.
                                                                       Gadchiroli.
                                                       2.              Vithoba   S/o   Sakharam   Bharre,   aged
                                                                       about 54 years,
                                                       3.              Narayan   S/o   Sakharam   Bharre,   aged
                                                                       about 49 years,
                                                      Nos.   2   and   3   are   R/o   Nilaj,   Tah.
                                                      Brahmapuri, Dist. Chandrapur.
                                                                                                                       

              Shri Rohit Joshi, Advocate for the appellant.
              Shri S. D. Sirpurkar, Advocate for the respondents.


                                                  CORAM: A.S. CHANDURKAR, J.

DATED: 08 th JUNE, 2017.

ORAL JUDGMENT :

1. The appellant, who is the original plaintiff, has filed

this appeal under Section 100 of the Code of Civil Procedure as he

is aggrieved by the judgment of the appellate Court dated

24-8-2001 by which said appeal preferred by the respondents

came to be allowed and the decree passed by the trial Court came

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to be set aside.

2. It is the case of the appellant that the respondents

were the owners of field Gut No.449 situated at village Kharkada.

This agricultural land was mortgaged with one Sadhu Bagmare.

According to the appellant, it was agreed that after the mortgage

amount was repaid, the suit property would be reconveyed to the

respondents. In that regard, the father of the respondents agreed

to execute an agreement of sale in respect of one acre of land in

favour of the appellant's father. Accordingly, on 17-7-1969, an

agreement was entered into in that regard. Thereafter on

17-9-1971, 25 decimals from the aforesaid land was also agreed to

be sold to the appellant's father. A third agreement dated

1-12-1975 with regard to 70 decimals land was again entered into

between the parties. Finally, on 15-10-1976 another agreement

with regard to the land admeasuring 1 acre .04 Gunthas also came

to be executed in favour of the appellant's father. Thus, by virtue

of these four agreements, entire Gut No.449 admeasuring 1

Hectare 21R was agreed to be sold for total consideration of

Rs.11,330/-. The respondent No.1 - Sakharam had initially filed a

suit against Sadhu Bagmare for execution of re-conveyance deed

and the suit was compromised on 27-9-1983. As the title was re-

conveyed, the appellant filed suit for specific performance of the

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aforesaid agreement and sought possession of the suit property.

3. In the written statement filed on behalf of the

respondent, the execution of the aforesaid agreements was

admitted, but according to them, these agreements were entered

into as being loan agreements. The suit was accordingly opposed

and the stand was taken that the appellant was not entitled for any

relief whatsoever.

4. Before the trial Court, the appellant examined various

witnesses. The respondents also examined witnesses in support of

their defence. The trial Court on consideration of the entire

evidence on record found that the appellant had proved that the

respondents had agreed to sell the suit land to him. A finding was

recorded that the transactions between the parties were not loan

transactions. The trial Court accordingly decreed the suit. The

appellate Court affirmed the finding of the trial Court that the

transactions between the parties were not loan transactions. It,

however, held that that the agreement dated 15-10-1976 had not

been proved and, therefore, the appellant was not entitled for

relief of specific performance. On that basis, the appeal was

allowed and the decree passed by the trial Court was set aside.

5. The appeal was admitted on the following substantial

question of law:

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Whether the Agreement dated 15-10-

1976 can be said to be not legally proved;

particularly when the execution and the writing of

the Agreement is not disputed and the defence put-

up by the Respondents about the loan transaction

has been negatived by both the Courts below?

6. Shri Rohit Joshi, learned Counsel for the appellant

submitted that the appellate Court was not justified in holding that

the agreement dated 15-10-1976 was not duly proved. He

referred to the written statement filed on behalf of the respondents

and especially the specific pleadings in which execution of various

agreements was referred to in the background of loan transactions

between the parties. He submitted that the appellant after

examining himself had proved the agreement at Exhibit-98. The

appellate Court having disbelieved the theory of loan transaction,

it was not open for the appellate Court to have held the said

agreement to be not proved. He, therefore, submitted that the suit

was rightly decreed by the trial Court and this decree deserves to

be restored.

7. Shri S. D. Sirpurkar, learned Counsel for the

respondents supported the impugned judgment. According to him,

the appellate Court was justified in holding that the agreement at

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Exhibit-98 was not duly proved inasmuch as the attesting

witnesses to the same were not examined. He submitted that even

if the theory of loan transaction was disbelieved, it was necessary

to prove the agreement dated 15-10-1976 in a proper manner. He,

therefore, submitted that the appeal was liable to be dismissed.

8. I have heard the learned Counsel for the parties at

length and I have also gone through the evidence on record. The

trial Court while answering issue No.1 has held that the

agreements at Exhibits 93,94,108 and 98 had been duly proved. It

referred to the pleadings of the parties and noted that the

execution of these documents had not ben seriously disputed.

However, the defence that it was a loan transaction between the

parties was not accepted. While answering issue No.3, a finding

was recorded that this loan transaction had not been duly proved.

The appellate Court in para 8 of its judgment has confirmed this

finding by holding that the defence with regard to loan transaction

as raised by the respondents did not appear to be probable. It can

thus be seen that both the Courts have concurrently held that the

documents at Exhibits 93, 94, 108 and 98 were not executed by

way of a loan transaction.

9. In so far as the agreement dated 15-10-1976

Exhibit-98 is concerned, in para 8 of the written statement it was

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pleaded that such document came to be executed by the father of

the respondents, but by way of loan transaction. In other words,

execution of the agreement was not specifically challenged, but the

object behind executing the agreement was sought to be portrayed

as a loan transaction. As noted above, both the Courts have not

accepted this defence. In absence of any specific challenge to the

execution of the document at Exhibit-98, the appellate Court was

not justified in holding that the plaintiff ought to have examined

witnesses to the said document. The respondent No.3 in his cross-

examination has clearly admitted that on 15-10-1976, the

aforesaid agreement came to be scribed. He further admitted that

he had accepted Rs.200/- while executing said agreement. In the

light of such evidence which is available on record, I find that the

trial Court was justified in accepting the case of the appellant. The

appellate Court without any justifiable cause proceeded to hold

that the agreement at Exhibit-98 was not duly proved.

Considering the pleadings of the parties and the evidence led by

them, I do not find that the appellate Court was justified in

holding so. The substantial question of law is accordingly

answered by holding that the agreement dated 15-10-1976

(Exhibit-98) was duly proved.

10. In view of aforesaid, it is held that the appellate Court

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was not justified in reversing the decree passed by the trial Court

especially when it had already recorded a finding that the

transaction between the parties was not a loan transaction.

Accordingly, the judgment dated 24-8-2001 in Regular Civil

Appeal No.93 of 1996 is set aside. The judgment and decree of the

trial Court dated 26-4-1996 in Regular Civil Suit No.128 of 1983

stands restored.

11. The second appeal is allowed in aforesaid terms. No

costs.

JUDGE

//MULEY//