Shaikh Ambir Sk Shahabuddin vs Asadullakha Nasrullakha And Ors
2021 Latest Caselaw 10410 Bom

                                     (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                        SECOND APPEAL NO.604 OF 2011
                                   WITH
                       SECOND APPEAL NO.605 OF 2011

 SHAIKH AMBIR SK SHAHABUDDIN
 THROUGH GPA - ASHABEE W/O SK.AMBIR = APPELLANT/s
                                   (Orig.Defendants)
      VERSUS

 ASADULLAKHA NASRULLAKHA AND ANR.                    = RESPONDENTS
                                                  (Orig.Plaintiffs)
                                   -----
 Advocate for Appellants : Mr. M M Joshi,
 Mr.S S Kazi, Adv. For Resp.Nos. 1 & 2.
                       --------

                               CORAM :     SMT.VIBHA KANKANWADI,J.

RESERVED ON : 27/07/2021 PRONOUNCED ON : 05/08/2021 PER COURT :-

1. Heard learned Counsel appearing for respective

parties.

2. Since both these appeals are between the same

parties and in respect of same subject matter, and both the

Courts below have given common judgment and, therefore,

here also, the appeals are heard and dealt with together and

decided by this common reasoning/order.

3. Appellants in Second Appeal No.604/201 were

original defendants in the suit filed by the respondents

herein, bearing Regular Civil Suit No. 256/2015 before

learned Civil Judge, Junior Division, Paithan,District

Aurangabad, which came to be decreed on 31.8.1999 and

the said decree was confirmed by learned Additional District

Judge, Aurangabad in RCA No. 310/1999 on 5.1.2003.

4. The appellant in Second Appeal No.605/2011 was

original plaintiff who had filed Regular Civil Suit No.

249/1995 before the same Judge for declaration, possession

and cancellation of sale-deed, which came to be dismissed

on 31.8.1999 and the said decree has been confirmed in

Regular Civil Appeal No. 307/1999 by the same Judge on

5.1.2003.

5. Learned Advocate appearing for the appellants in

both the matters submitted that both the Courts below have

not considered the facts and the findings properly. The

transaction between (for the sake of convenience, the

parties are addressed by their nomenclature before this

Court) the appellants and the respondents, was that of

mortgage and they never intended to have a sale-deed, i.e.

out and out sale, on 14.8.1981. In order to prove that the

document was mortgaged, the plaintiffs have examined the

witnesses who were present before the concerned

authorities at the time of registration of the sale-deed.

Though there was a written document; yet the plaintiffs

were entitled to lead oral evidence and there was no bar

under Section 92(1) of the Evidence Act to lead evidence.

He relied on the decision in the case of Smt. Gangabai

Rambilas Gilda Vs. Smt. Chabubai Pukhrarji Gandhi - AIR

1982 SC 20, wherein, it has been held, -

"The bar imposed by sub-section (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the

document, was entered into between the parties."

6. The same ratio has been laid down in the case of

K. Bhaskaran Nair Vs. Habeeb Mohammed and Ors. - AIR

2002 Kerala 308.

7. Both the parties failed to consider that even in

1981 when the document was executed, the land,

admeasuring 13 acres and 34 gunthas, i.e. 5 hectares and

60 Ares, could not have been sold only for Rs.2,000/-.

Therefore, taking into consideration the extrinsic evidence,

both the Courts below ought to have come to the conclusion

that real nature of the transaction was mortgage.

. Further reliance has been placed on the decision

in the case of Gangadhar Ramchandra Gaikwad Vs.

Rambhau Santu Ushir & Anr. - 2007 (1) Bom.C.R. 517, on

the point that a document has to be read as a whole to find

out whether the document is deed of sale or conditional

mortgage? He also pointed out that the learned First

Appellate Court has not complied with order 41 Rule 31 of

CPC and when so many issues were framed and answered

by the learned Trial Judge; the first Appellate Court has

framed only one issue, as to whether the sale-deed dated

14.8.1981 is a mortgage by a conditional sale? Further

reliance is place on the ratio laid down in Khatunbi wd/o

Mohammad Sayeed and Ors.. Vs. Aminabai wd/o of

Mohammed Sabir - 2006 (6) Mh.L.J. 579 and similar view

has been taken in Dwarika Prasad Marwari Vs. Sudarshan

Pd.Chaudhary and Ors. - AIR 1984 Patna 274; and Vishwas

Balu and Ors. Vs. Ghasiram Ramratan Jajum and Ors. - AIR

1975 Bom. 278. The oral evidence was not at all considered

by the Courts below and, therefore, the judgment is

vitiated. Substantial questions of law are arising in these

appeals, requiring admission of the Second Appeals.

8. Per contra, learned Advocate Mr. Waheed holding

for Advocate Mr. Kazi, appearing for Respondent Nos. 1 and

2, supported the reasons given by both the Courts below

and submitted that the present appellants failed to prove

that there was existence of relationship as creditor and

debtor between the respondents and the appellants

respectively. It can be seen that the nature of the

transaction was mortgage or conditional sale. Further, the

original plaintiffs/present appellants, in their suit had not

even examined the original plaintiff, but only General Power

of Attorney was examined, who had no personal knowledge.

Evidence of such person could not have been considered.

No substantial questions of law are arising in this case.

9. It is not in dispute that a document was executed

on 14.8.1981, which is registered document and it is styled

as sale-deed between the present appellants and the

respondents. The appellants were executants whereas the

respondents were executors. The suit property was

admeasuring 5 hectares and 60 Ares from Gut No.22. The

plaintiff had come with a case that the real nature of the

transaction was mortgage. When the appellants themselves

had gone before the Court, asking for the relief that the

defendants therein are liable to deliver the possession of the

suit land to them, then, in fact, half of the subject matter,

i.e. the dispute, was over. It was only to be shown by the

present respondents in their own suit as to whether the

defendants in their suit were obstructing their possession

over the suit land? Another fact to be considered is, that

immediately after the execution of that document, mutation

entries were taken and the present appellants had not

challenged those entries. Both the Courts below have

rightly considered that there was no evidence to show that

the relationship between the present appellants and the

respondents was that of debtor and creditor, which is a sine

qua non for a mortgage transaction. Even if we accept that

the appellants were entitled to lead oral evidence and, there

could not have been bar under Section 92 of the Evidence

Act; yet whatever evidence has been produced by the

plaintiff, it cannot beyond the document. If the parties had

no intention to execute the sale-deed, then the terms would

have been different. It could have been specifically stated

the other terms of the transaction, i.e. when the advance

amount is required to be repaid; in what manner etc. The

evidence of the plaintiff also appears to be silent on this

point. Therefore, even consideration of the oral evidence

would give the same result. There is absolutely no

reasonable ground shown by the present appellant as to

why he had not entered into the witness box to support his

claim. He has examined his wife, who was the General

Power of Attorney. But it can be seen that her presence

was not on record when the sale-deed was executed. The

sale-deed mentions that it is absolute sale and no stipulation

for refund of the amount was mentioned. There was no

separate document also entered into between the parties to

show that the real intention was different. Even the recital

regarding handing over of possession has been taken and,

as aforesaid, the suit was for recovery of possession also.

That means, on the day the document was executed, the

plaintiff parted with the possession of the suit property. If

he was supposed to get the loan of Rs.2,000/- only then for

how many months or years, he could have allowed the

defendant to cultivate the land is a question. The document

was executed on 14.8.1981 and the suit for declaration,

cancellation and possession was filed by the plaintiff on

4.12.1995. The defendant, only on the basis of loan

amount of consideration or meager amount of consideration,

cannot get the sale-deed cancelled or come with a case that

the real nature of the transaction was different when he

had, in fact, parted with possession of the property.

Therefore, taking into consideration the appreciation of

evidence, which is already there, showing that there was no

relationship of debtor and creditor between the appellants

and the respondents, the conduct also does not support the

contention that the real transaction was mortgage in nature.

No substantial questions of law are arising in this case.

10. As regards the alleged non-compliance of Order

41 Rule 33 of CPC is concerned, it is to be noted that the

basic point regarding the transaction, in question, was

framed by the learned Trial Judge and he has also

considered the other evidence on record which may not

have been firstly formulated in the form of points. All the

points involved in the appeals were considered by the

learned First Appellate Court and, therefore, only on the

basis of the contention that there is non-compliance of order

41 Rule 33 of CPC, the appeals cannot be admitted.

11. Both the Courts below have properly appreciated

the evidence and the legal points involved in the appeals

have been addressed and finding has been given and,

therefore, when no substantial questions of law is arising, in

view of the decision in the case of Kirpa Ram (Deceased)

Through L.Rs. And Ors. Vs. Surendra Deo Gaur and Ors. -

(2021) 3 Mah.L.J. 250, both the appeals, filed under Section

100 of CPC, deserve to be dismissed at the admission stage

and accordingly they are dismissed. Pending Civil

Application, if any, stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

BDV