Bapurao S/O Shravanji Khante vs Bhagwan S/O Anandraoji Khante
2017 Latest Caselaw 3226 Bom

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


                        APPEAL AGAINST ORDER NO. 54/2016


                Shri Bapurao s/o Shivanji Khante,
                Aged about Major,
                Occu: Agriculturist, R/o Near Bank of India
                Chowk, New Area Butibori,
                Tahsil and District Nagpur.
                                                        APPELALNT
                                  VERSUS

                Shri Bhagwan s/o Anandraoji Khante,
                Aged about Major,
                Occu: Agriculturist, R/o near Bank of India
                Chowk, New area Butibori,
                Tahsil and District Nagpur.
                                                       RESPONDENT

  =========================================================

Shri N.V. Fulzele, Advocate for Appellant.

Shri A.S. Kulkarni, Advocate for Respondent. =========================================================

CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI, J DATED : 15th JUNE, 2017.

ORAL JUDGMENT

1. This appeal is preferred against the order dated

14/07/2016 passed by the District Judge-9, Nagpur in

Regular Civil Appeal No. 246/2016 thereby partly allowing

the appellant s application for interim injunction filed

under order-39, Rule 1 and 2 of Civil Procedure Code

restraining the respondent from creating any third party

interest in the suit property; however, rejecting the

prayer of restraining the respondent from disturbing the

appellant s possession in the suit property, till

disposal of appeal.

2. The case of the appellant is to the effect that

respondent herein, had by executing an agreement of sale

dated 15/05/2000 agreed to sell the suit property to the

appellant and accepted the total consideration of Rs.

75,000/-. On the date of agreement itself, the appellant

was put in possession of the suit land and since then, he

was and he in is in lawful possession thereof. However,

as the appellant s suit for specific performance of the

contract came to be dismissed by the Trial Court, the

respondent was trying to create third party interests in

the suit property and also trying to disturb the

appellant s possession in the suit property; hence, it

was necessary to restrain the respondent from doing so.

3. Respondent resisted this application for interim

injunction,contending inter-alia that appellant is not in

possession of the suit property.It was submitted that the

learned trial court has already recorded clear finding

that amount of Rs.75,000/-was given as a hand loan and

alleged agreement of sale was also not registered or

executed on proper stamp paper and hence cannot be read

in to evidence. Therefore no case was made out by

appellant-either for grant of relief of restraining

the respondent from creating third party interest or from

disturbing the alleged possession of the appellant over

the suit property.

4. After hearing the learned counsels for appellant

and respondent, the First Appellate Court was pleased to

hold that except for agreement of sale, in which there is

an averment that possession of the suit land was handed

over to the appellant, there was no other evidence

proving that appellant was in actual physical possession

of the suit land. The First Appellate Court further held

that as the said agreement of sale is not registered and

also not executed on proper stamp paper, it can not be

read in evidence. It was further held that trial court

has already held the transaction to be not of sale but of

security towards the repayment of loan. In this view of

the matter, the First Appellate Court rejected the

appellant s prayer for restraining respondent from

disturbing his possession in the suit land, however

allowed the prayer of appellant to the extent of

restraining respondent from creating third party interest

in the suit land.

5. While challenging this order of the First

Appellate Court before this court, it is submission of

learned counsel for appellant that the First Appellate

Court has not at all considered the documentary evidence

produced on record. It is submitted that, as per the

evidence of respondent himself, he is having two other

brothers and the suit land is being cultivated by one of

his brothers. It is submitted that respondent has

disclosed this fact for the first time in the court as in

the written statement no such case is made out. It is

admitted by him Respondent that he has not disclosed this

fact in the written statement.

6. Secondly, it is submitted that as per the

agreement executed inter-se between respondent and his

two brothers, the partition has already been effected

between respondent and his brothers and as regards the

suit land, in the interse agreement between them dated

7.1.2011 it is stated that respondent was put in

possession of the suit land which was allotted to his

share; whereas, his brothers are in possession of the

lands allotted to their share. It is urged that, if this

evidence was taken into consideration, the first

appellate court would have inevitably come to the

conclusion that appellant was put in possession of the

suit land by the Respondent. It is coupled with the fact

that there is a clear averment to that effect made in the

agreement of sale that on the date of agreement itself

the possession of the suit land was delivered to

appellant as a part performance of the agreement. Learned

counsel for appellant has further submitted that the

agreement is an exhibited document and no objection was

taken, when the trial court admitted it in evidence and

exhibited the same. Moreover such agreement, even if it

is unregistered or not executed on the proper stamp

paper, it can be considered for collateral purpose of

deciding as to who is in possession of the suit land. It

is thus submitted by learned counsel for appellant that,

as learned First Appellate Court has not considered this

aspect, the impugned order passed by it, rejecting the

appellant s request for restraining respondent from

disturbing his possession, needs to be set aside.

7. Per contra, learned counsel for respondent has

supported the impugned order of the First Appellate Court

and in my considered opinion rightly so. It may be true

that in the agreement of sale it is stated that

possession of the suit land was delivered to the

appellant on the date of agreement itself. However, the

judgment of the trial Court which is a based on the

appreciation of evidence of the attesting witnesses

clearly goes to show that it was not a transaction of

sale but a transaction of hand loan and for the security

of repayment of such hand loan, this alleged agreement

was executed. This fact is admitted by the attesting

witness to the agreement, viz. Ramchandra Gopal Shende,

who is examined by the appellant himself. In his cross

examination this witness has admitted in so many words

that the agreement was executed as a security for the

hand loan obtained by the respondent. There are also

averments in the agreement of sale itself, produced at

page no. 87 in this appeal to the effect that, in order

to repay the amount of hand loan, the period for

execution of the sale deed was extended.

8. Thus it goes without saying that it was not a

true and genuine transaction of agreement of sale but it

was executed as security for repayment of loan amount.

Normally the possession of the property which is used as

a security, is not given in such cases though in the

agreement it is stated that, the possession was handed

over. Therefore, if alleged agreement of sale which is

treated and considered rightly by trial court as an

agreement of security towards the repayment of loan then,

even if it is considered for collateral purpose also, it

becomes difficult to accept that on the basis of said

agreement, the possession of land was handed over by

respondent to the appellant. It is apart that said

agreement was also not executed on the proper stamp paper

and is also not registered. Merely because it is

exhibited, in the absence of learned counsel,

respondent, much evidential value cannot be attached to

it.

9. Moreover, except for this bare averment made in

the agreement, absolutely no corroborative evidence is

produced on record by the appellant to prove his

possession over suit land. If the agreement was executed

on 15/5/2000 itself, at least in possession column of

7/12 extract or in any other revenue record, the name of

the appellant would have appeared as cultivator or the

occupant. However, no such document is produced on record

by the appellant. Relying upon certain averment in the

inter-se agreement between respondent and his brothers,

the appellant cannot prove his possession over the suit

land. Moreover, in the light of the facts of the present

case when the alleged agreement is already held to be a

sham and bogus document,as apparently it was a

transaction for repayment of loan and that finding of the

learned trial court is based on evidence on record, it

can not be said, in the absence of any other documentary

evidence proving the possession of the appellant over the

suit land, that the discretion exercised by the first

appellate court in rejecting the appellant s application

for restraining respondent from disturbing his peaceful

possession can be interfered with. As the said discretion

is exercised properly and justified from the facts of

record, no interference is warranted in the impugned

order of the First Appellate Court. The appeal therefore

being devoid of merits, stands dismissed.

JUDGE

Nandurkar