Bombay High Court
Prabhakar Ambadas Kadekar vs Kamal Ashruba Dhakne And Others on 21 March, 2017
Bench: S.P. Deshmukh
SA 415/14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.415/2014
Prabhakar s/o Ambadas Kadekar,
age 55 yrs., occu.labourer,
r/o Koradgaon Tq.Pathardi,
at present Nath Nagar, Pathardi.
Dist.Ahmednagar.
...Appellant..
(Org.plaintiff)
Versus
1] Kamal w/o Ashruba Dhakne,
age 50 yrs., occu.household,
r/o Jogewadi, Post Chincpur Pangur,
Tq.Pathardi Dist.Ahmednagar.
2] Mangal w/o Ranjendra Garje,
age 43 yrs., occu.household,
3] Nandubai w/o Sandipan Nagargoje,
age major, occu.household,
Respondent nos.2 & 3 r/o
Pagori Pimpalgaon Tq.Pathardi
Dist.Ahmednagar.
4]
Ravindra s/o Ramdeo Mhaske,
age 33 yrs., occu.agri.,
r/o Koradgaon Tq.Pathardi.
Dist.Ahmednagar.
...Respondents...
(Org.defendants)
.....
Shri N.B. Narwade, Advocate for appellant.
.....
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SA 415/14
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CORAM: SUNIL P. DESHMUKH, J.
DATE: 21.03.2017
ORAL JUDGMENT :
1] Heard learned counsel for the appellant.
2] The appellant - original plaintiff had
instituted Regular Civil Suit No.53/2008 claiming
declaration and injunction.
3] In order to facilitate appreciation, succinct
reference to the case pleaded by the plaintiff would be
worthwhile.
4] The plaintiff executed two sale deeds dated
16.9.1995 respectively in favour of defendants no.1 & 2.
One sale deed relates to land admeasuring 1 Hectare from
northern side situated at north-west corner from Gut
No.290/1 and the other sale deed is in respect of 1
Hectare from same land Gut No.280/1 on the north east
corner. It is the case of the plaintiff, the sale deeds
were executed on the implied condition that defendants
no.1 & 2 would reconvey aforesaid lands. There had been
no time limit for reconveyance. The sale deeds were
executed to repay the loan taken by the plaintiff from
Bhu Vikas Bank and to get the land released from mortgage
SA 415/14
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with one Vimalbai Awasarmal. Subsequently, defendant
no.2 alienated the property purchased by her in favour of
defendant no.3. Thereafter, the plaintiff issued a
notice in April, 2004, which came to be replied opposing
the claims under the notice. A criminal proceeding has
also been initiated by the plaintiff against defendants
no.1 and 2. The plaintiff as such instituted present
suit seeking reconveyance and declaration that the sale
deeds executed by the plaintiff in favour of defendants
no.1 & 2 dated 16.9.1995 to be null and void.
4] The defendants have resisted the suit. They
have averred that land area of about 1 Hectare, 61 Are
from Gut No.280 was mortgaged by the plaintiff with Sau.
Vimalbai Walmik Awasarmal. The plaintiff was in need of
money, to redeem said mortgage and also to pay back loan
of Maharashtra State Cooperative Agriculture and Rural
Development Bank Ltd., Pathardi. The sale deeds were
executed to discharge said debts. The defendants no.1 &
2 have paid Rs.30,300/- under Receipt No.38159 to Bhu
Vikas Bank towards repayment of loan. The transactions
are out and out sale.
5] The trial as well as appellate Courts have
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framed issues and points for determination, respectively,
as to whether the sale deeds executed in favour of
defendants no.1 & 2 were with the condition of
reconveyance, whether the defendants have committed any
breach of terms and conditions of the sale deeds and
whether those are liable to be cancelled.
6] The Courts hitherto have, on appreciation of
evidence, found that though it is the plaintiff's case
that the amount has been paid back by the plaintiff to
the defendants from time to time, however, save bare
words, there is nothing on record to show that any amount
had ever been paid to defendants. The oral evidence in
this behalf has not corroborated the version of the
plaintiff. The Courts have further appreciated that the
plaintiff was under an obligation to repay the loan to
Bhu Vikas Bank. The defendants had adduced evidence and
produced Receipt No.38159 dated 17.10.1995 of Bhu Vikas
Bank showing repayment of his loan by them. This
particular aspect could not be rebutted by the plaintiff
by any credible material. Besides, the plaintiff had
admitted during cross-examination that he had sold the
land to Vimalbai Awasarmal on the condition that she will
SA 415/14
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execute reconveyance and further that after execution of
sale deeds in favour of defendants no.1 & 2, the land had
been got released from the mortgage of said Vimalbai
Awasarmal. There is further evidence by the plaintiff's
wife that the amount received from the defendants no.1 &
2 had been utilized to get release of the land from the
mortgage of said Vimalbai Awasarmal. The Courts have
also gathered from the contents of the sale deeds that
they refer to that the sale deeds were executed in order
to get the land released from mortgage and for repayment
of the bank loan. The sale deeds were considered to be
out and out sale. The Courts have further considered
that the plaintiff himself had sold yet another piece of
10 Acre land at Pimpalgaon. Further the Courts have
taken into account that certain developments have been
caused over the suit land by the defendants and that
defendant no.2 had sold the land purchased by her to the
defendant no.3.
6] The learned counsel for the appellant, during
the submissions, refers to a copy of one of the sale
deeds. Perusal of the same also shows that it does not
embody any condition of reconveyance. In the
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circumstances, the appreciation by the Courts hitherto
does not appear to be not adhering to the evidence.
Neither any circumstances have been brought about
infusing substance in the claim being made by the
plaintiff.
7] The second appeal as such does not appear to
raise any substantial question for consideration. The
same fails and stands dismissed.
(SUNIL P. DESHMUKH, J.)
ndk/c2131710.odt
