Jyotiram Undraji Naik vs Ashok Tarachand Ramteke
2017 Latest Caselaw 6860 Bom

              SA485.02.odt                                                                                 1/7

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

                                             SECOND APPEAL NO.485 OF 2002

               APPELLANT:                                         Jyotiram   S/o   Undraji   Naik,   Aged   62
                                                                  years,   Occu-Agriculturist,   Resident   of
               (Ori.Deft.)
                                                                  Giroli,   Tahsil   Chandur   Rly.,   Dist.
                                                                  Amravati.

                                                                                                               
                                                           -VERSUS-

               RESPONDENTS:                                       Ashok   Tarachand   Ramteke,   aged   37
               (Ori. Plff. on                                     years,   Occu-Agriculturist,   Resident   of
               R.A.)
                                                                  Ward   No.23,   Bhimnagar,   Pulgaon
                                                                  District Wardha.

                                                                           
                                                                                 

              Shri P. R. Agrawal, Advocate for the appellant.
              Shri N. R. Saboo, Advocate for the respondent.



                                                              CORAM: A.S. CHANDURKAR, J.

DATED: SEPTEMBER 06, 2017.

ORAL JUDGMENT :

1. This second appeal is filed by the original defendant

and it was admitted by framing the following substantial questions

of law:

(1) Whether the sale deed dated 9-2-1988 (Exh.49) was executed by the present appellant in favour of

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Gangaram was or was not a nominal document?

(2) Whether Gangaram could have executed the subsequent sale deed on 6-7-1992 in favour of the present respondent?

2. It is the case of the respondent - plaintiff that field

Survey No.178/2 admeasuring 1 hectare 62 R was initially owned

by the defendant. He sold the suit property to one Gangaram

Pachode on 9-2-1988 for a consideration of Rs.15,000/-. On 6-7-

1992, the plaintiff purchased the suit property from said

Gangaram Pachode for a consideration of Rs.28,000/-. It is the

case of the plaintiff that he was dispossessed in July 1993. He

issued a notice on 6-8-1996 and then filed suit for recovery of

possession. It was his case that he was the owner of the suit

property pursuant to the sale deed dated 6-7-1992.

3. The appellant - defendant filed his written statement

at Exhibit-19 and denied the case of the plaintiff. According to

him, the sale deed dated 9-2-1988 was nominal in nature and it

was executed out of a money lending transaction. According to

him, his son Keshav had agreed to purchase two acres of land. As

said Keshav was in need of Rs.10,000/- as an earnest amount, the

loan was obtained from Gangaram. It was further pleaded that the

defendant continued in possession of the suit property and hence,

the plaintiff did not have any valid title.

SA485.02.odt 3/7

4. After the parties led evidence before the trial Court, it

was held that the plaintiff had proved his title on the basis of sale

deed dated 6-7-1992. It was however held that since 1993, the

defendant was illegally cultivating the suit land. On that basis the

suit was partly decreed and decree for delivery of possession was

passed. The first appellate Court dismissed the appeal filed by the

defendant.

5. Shri P. R. Agrawal, learned Counsel for the appellant

submitted that the sale deed dated 9-2-1988 was nominal in

nature. According to him, the possession of the suit field was

never handed over to Gangaram and the defendant continued in

possession thereof. Even when the sale deed dated 6-7-1992 was

entered into neither Gangaram nor Ashok - plaintiff were in

possession. He referred to the 7/12 extracts on record as well as

the finding of the Courts in that regard to submit that the plaintiff

never came in possession pursuant to his sale deed. He referred to

the other evidence on record to indicate that the defendant and

said Gangaram were doing plot business. On the basis of the entire

evidence on record, it was proved that the transaction between the

parties on 9-2-1988 was not an out and out sale. Relying upon the

judgment of the Hon'ble Supreme Court in Brijvasilal vs. Abdul

Haji (2001) 9 SCC 367, it was submitted that in absence of any

SA485.02.odt 4/7

pleading that the plaintiff was put in possession, it ought to have

been held that the transaction was never completed. It was thus

submitted that the sale deed dated 9-2-1988 was a nominal

document. Hence, the plaintiff had no title in the suit property.

6. Shri N. R. Saboo, learned Counsel for the respondent

supported the impugned judgment. According to him, execution

of the sale deed at Exhibit-49 was not disputed. He submitted that

in July, 1993, the plaintiffs had been dispossessed. The notice

dated 6-8-1996 issued by the plaintiff was not replied and this

indicated that the defence as raised by the defendant was merely

an afterthought. According to him, if the execution of the

document was admitted, then the aspect of possession becomes

secondary. Both the Courts having held that the transaction was

one of sale, no interference was called for.

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

length and perused the records of the case. According to the

defendant, the sale deed dated 9-2-1988 by which he sold the suit

property to one Gangaram Pachode at Exhibit-49 was a nominal

transaction. In this regard if the evidence of the defendant is

perused, it would be seen that it was his case that his son Keshav

had entered into a transaction for purchasing four acres land from

Gangaram. The said field was at Nachangaon. In his cross-

SA485.02.odt 5/7

examination he was unable to give the date when that transaction

took place. He stated that the subsequent sale deed was only of

two acres of land on the basis of which he had got possession. The

sale deed was executed immediately on the next day after the suit

land was sold in favour of Gangaram. In so far as the sale deed at

Exhibit-49 is concerned, its execution was duly admitted by the

defendant. This document was initially marked as article 'B' and

was subsequently marked as Exhibit-49. The total consideration

was Rs.15,000/- out of which Rs.11,000/- were received from

Gangaram in the office of the Sub Registrar. There is a statement

in said sale deed that the possession of the suit field was handed

over to Gangaram. It is to be noted that the plaintiff had taken

steps for calling the copy of the original sale deed and permission

in that regard was granted by the trial Court as per order below

Exhibit-39. Ultimately, a photo copy of that document was placed

on record which was then marked as Exhibit-49. The sale

transaction dated 9-2-1988 thus stands proved.

8. On 6-7-1992, said Gangaram sold the suit property to

the plaintiff. According to the plaintiff, he was dispossessed in

July, 1993. He issued a notice on 6-8-1996 at Exhibit-35 and

demanded possession alongwith damages. No reply was given to

this notice after which the present suit came to be filed. The 7/12

SA485.02.odt 6/7

extracts at Exhibit-37 indicate possession of the defendant.

According to the plaintiff, these entries were challenged before the

revenue Authorities. The defendant admitted that in the year 1990

itself Gangaram had applied for having his name mutated and

after the name of Gangaram was entered in the records he did not

challenge the same.

9. According to the defendant, as possession of the suit

property was never delivered to the plaintiff he did not get title to

the same. In this regard, it is to be noted that the vendor -

Gangaram has not challenged the sale deed dated 6-7-1992 at

Exhibit-31 not is it his grievance that such transaction was never

entered into with the plaintiff. Though it is urged on behalf of the

defendant that the aspect of possession not being with the plaintiff

is fatal to his case, the same cannot be considered in isolation. The

entire evidence on record will have to be taken as a whole to

consider whether the plaintiff has proved his title as per said sale

deed or that the defendant has proved that it was a nominal

transaction. The attesting witnesses to the earlier sale deed at

Exhibit-49 were not examined by the defendant to indicate a

different nature of transaction. There is further no evidence to

indicate money landing transaction by Gangaram. The payment of

consideration of Rs.11,000/- in presence of the Registrar is also a

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material factor that cannot be ignored. The defendant has not

succeeded in proving that the sale deed dated 9-2-1988 in favour

of Gangaram was a nominal document. Thus, considering the

entire evidence on record, I find that both the Courts were justified

in coming to the conclusion that the plaintiff obtained title as per

sale deed dated 6-7-1992. On that count, sale deed dated 6-7-1992

executed by Gangaram in favour of the plaintiff would have to be

upheld. In the facts of the case, the ratio of the decision in

Brijvasilal (supra) cannot assist the defendant. The substantial

questions of law are answered accordingly.

10. In view of aforesaid, the judgment of the first appellate

Court stands confirmed. The second appeal is accordingly

dismissed. No costs.

11. At this stage, the learned Counsel for the appellant

seeks continuation of interim relief that is operating. This request

is opposed by the learned Counsel for the respondent. In the facts

of the case, the interim relief shall continue to operate for a period

of eight weeks from today and shall cease to operate automatically

thereafter.

JUDGE

/MULEY/