Ramchandra Maroti Bhosale vs Nivruti Tukaram Bhosale (Died) ...
2021 Latest Caselaw 11088 Bom

                                                                  sa-413 & 414-2019.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                            SECOND APPEAL NO.413 OF 2019
                                       WITH
                            SECOND APPEAL NO.414 OF 2019

                 RAMCHANDRA S/O MAROTI BHOSALE
                              VERSUS
       NIVRUTI S/O TUKARAM BHOSALE (DIED) THR. LRS NARAYAN
                     NIVRUTI BHOSALE AND ORS

                                         ...
                   Mr. V. D. Salunke, Advocate for the appellant.
                S. B. Ghatol Patil, Advocate for Respondent No.1/1.
                Mr. S. K. Chavan, Advocate for respondent Nos.1/2.
                                         ...

                                    CORAM        : SMT. VIBHA KANKANWADI, J.

                                    DATE         : 17.08.2021

ORDER :-


.         Present appeal i.e. Second Appeal No.413 of 2019 has been filed

by the original defendant. Present respondents are the original plaintiffs,

who had filed Regular Civil Suit No.46 of 2008 for declaration of

ownership, cancellation of sale deed and perpetual injunction.

2. It is not in dispute that the original plaintiff was the owner of land

Gut No.50 admeasuring 1 H 35 R to the extent of 68 R situated at

village Suhagaon, Tq. Purna, Dist. Parbhani. It is stated that the said

land is divided into two pieces. First piece is admeasuring 30 R and the

second is 38 R. According to the plaintiff, he had obtained hand loan of

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Rs.30,000/- from the defendant for the marriage of his grand-daughter

in the year 1997 and at that time, he had executed sale deed in respect

of 30 R land of Gut No.50 in favour of defendant as a security. At the

time of that transaction, defendant had not disclosed what would be the

rate of interest on the loan, however, after the execution of the sale deed

on 27.12.1996, defendant told plaintiff that he would be required to pay

interest at the rate of 7% per annum. Plaintiff was not in a position to

pay the loan amount and thereafter, the defendant forcibly got executed

sale deed of another 38 R land on 11.07.1997 in lieu of amount of

interest on hand loan. According to the plaintiff, at the time of

execution of sale deeds, it was agreed between the parties in presence of

witnesses that after the repayment of entire amount, defendant would

re-convey the lands to the plaintiff. Plaintiff contends that as per the

agreement, he paid amount of Rs.50,000/- to the defendant and

requested him to re-convey the suit land, however, defendant denied. It

is also contended that the defendant has shown false amount of

consideration in sale deeds. According to the plaintiff, defendant is

doing illegal money lending business. As per the oral agreement, the

sale deeds were nominal and the possession of the suit land was never

handed over to the defendant. Defendant has got the Mutation Entry

Nos.600 and 609 illegally mutated. Hence, this suit. The defendant has

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come with the defence that it is an out and out sale.

3. The learned Trial Judge i.e. Civil Judge Junior Division, Purna

while dismissing the suit on 02.01.2010 held that the plaintiff has

proved that he had executed nominal sale deeds in favour of defendant,

however, it has been held that he failed to prove that the suit lands are

in his possession. It is also held that the defendant has failed to prove

that he is a bona fide purchaser of the suit land. Plaintiff is not entitled

to get the sale deeds cancelled and also the other reliefs claimed.

Original defendant then approached the learned Principal District Judge,

Parbhani by filing Regular Civil Appeal No.19 of 2010 challenging the

issue that has gone against him. The learned Principal District Judge

held that the plaintiff has proved that the sale deeds dated 27.12.1996

and 11.07.1997 are nominal sale deeds executed by way of security in

favour of the defendant. Thereafter, the finding in respect of possession

has been reversed by the first Appellate Court saying that the plaintiff

has proved that he is in possession of the suit land, yet, it was held that

the plaintiff's suit for cancellation of sale deeds is not within limitation.

The judgment and decree passed by the learned Trial Judge has not been

modified. Though in the points and findings column, it is stated by the

learned Principal District Judge, that the judgment and decree passed by

the learned Trial Court calls for interference to the extent of possession

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of the defendant, yet the ultimate operative order says that the appeal is

dismissed.

4. Heard learned Advocate Mr. V. D. Salunke for appellant in both

cases, learned Advocate Mr. S. B. Ghatol Patil for respondent Nos.1/1

and learned Advocate Mr. S. K. Chavan for respondent No.1/2 in both

the cases.

5. At the outset, it is to be noted that the plaintiff is not denying the

execution of the sale deeds on two different occasions/dates i.e.

27.12.1996 and 11.07.1997. The documents have been produced on

record and the interpretation of the same is definitely called for in this

second appeal. At the first impression, those sale deeds would show

that it is an out and out sale and even in the cross examination, the

plaintiff has admitted that there was no separate documentary evidence

to show that an agreement was arrived at between him and the

defendant to show that it was settled between the parties that the

defendant would re-convey the property after the amount is repaid. In

fact, whether there is a concept of nominal sale deed under law itself is

a question. Plaintiff has not given reason as to why documents having

regular contents of sale deed was executed instead of what was exactly

agreed upon between them. However, it appears that both the Courts

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below have considered the circumstances to arrive at a conclusion that

they were the nominal sale deeds and, therefore, it is then required to be

considered as to whether that would have been allowed in view of bar

under the provisions of Sections 91 and 92 of the Indian Evidence Act.

6. In one of the recent judgment of the Hon'ble Supreme Court in

Bhimrao Ramchandra Khalate (Deceased) Through Lrs. Vs. Nana Dinkar

Yadav (Tanpura) and Anr., (Civil Appeal No.10197 of 2010) decided on

13.08.2021, wherein after taking into consideration the catena of earlier

judgments, it has been held that "it depends upon the terms of the

contract or intention of the parties as to which agreement or contract

they intended to enter." No doubt, that was a specific case for

redemption of mortgage and based upon the decision in the celebrated

authority in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Anr., (AIR

1954 SC 345), wherein it was observed that the question examined was,

whether a given transaction is a mortgage by conditional sale or sale

outright with a condition to repurchase would depend upon the

attending circumstances, facts of the case and intention of the parties.

The basic principle is applicable here. When execution of the sale deeds

is admitted here and the Trial Court holds that the plaintiff has failed to

prove his possession, then whether the first Appellate Court would be

justified in reversing that fact, is also a question of law and, therefore,

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the appeal deserves to be admitted. Accordingly, Second Appeal No.413

of 2019 stands admitted. Following are the substantial questions of

law :-

I) What was the nature of the transaction between plaintiff and defendant though there was execution of sale deeds on 27.12.1996 and 11.07.1997. In other words, whether they were nominal sale deeds or it was an out and out sale?

II) Whether plaintiff could have taken alternative pleas and filed suit for cancellation of sale deed when one of his contention was that separate agreement was that the defendant had agreed to re-convey the property?

III) Whether plaintiff proved that he was in possession of the suit land?

IV) Whether both the Courts below ought to have dismissed the suit of the plaintiff on all the issues?

7. Before parting, a fact will have to be mentioned here that the

original plaintiff have not filed any appeal regarding dismissal of his

suit, nor he has filed any second appeal and it is not brought to the

notice of this Court at this stage.

8. Now, turning towards Second Appeal No.414 of 2019, it is to be

noted that the appellant herein is also the same and he had filed Regular

Civil Suit No.65 of 2008 before the learned Civil Judge Junior Division,

Purna for perpetual injunction. As aforesaid, that suit came to be

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decreed and the defendant was restrained from causing obstruction and

interference in the possession of the plaintiff over the suit land till he is

dispossessed in accordance with the law. The original plaintiff again had

filed Regular Civil Appeal No.18 of 2010, before the learned Principal

District Judge challenging the findings which have gone against him. At

the cost of repetition, it can be said that in this suit also it was held that

though the plaintiff had proved the possession over the suit land, the

defendant had proved that the sale deeds dated 27.12.1996 and

11.07.1997 are nominal sale deeds. The Appellate Court dismissed the

appeal on 19.07.2018 and the cross objections were allowed and

thereby finding regarding possession of the plaintiff was set aside. The

things need not be repeated as both the suits were based on the same

facts. Even at this stage, one fact is required to be observed that this

Court has again and again deprecated practice of giving two separate

judgments when the parties and property involved are same and also the

subject matter i.e. the contention was same. It is very sorry state of

affairs that just in order to get more disposal norms, the judicial officers

are involved in such practice of giving two separate judgments, but they

are not forcing the difficulties those are arising for the parties and

sometimes they are unnecessarily required to file more appeals than

required. This Court would once again tried to awake the consciousness

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of the judicial officers that they should keep themselves away from such

practices for the sake of earning disposal. The job of the judicial officers

is to decide the rights of the parties and when that is required to be

done, multiplicity in any form, which may lead to controversy, should be

avoided.

9. Now, again at the cost of repetition, it can be said that the learned

Trial Judge held that the plaintiff was put in possession of the property

by the defendant in both the suits. However, the learned first Appellate

Court deviated itself and further it is surprising to note that when the

cross objection is allowed by the first Appellate Court, only the finding

has been set aside. No relief has been granted to the defendant, but had

filed the cross objection. In fact, when another suit was already pending

and the appeal is also before the same Court, whether there was

necessity to file any cross objection itself is a question and, therefore, the

observations in the aforesaid paragraph that the multiplicity should be

avoided will have to be underlined. Apart from the evidence and the

contentions of the parties, the second appeal is required to be admitted

because of the contrary judgments and duplication of judgments by the

Courts below. Hence, Second Appeal No.414 of 2019 stands admitted.

10. Already those substantial questions of law have been framed and

in addition to that while admitting Second Appeal No.414 of 2019,

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following substantial question of law is arising :-

I) Whether the first Appellate Court was justified in allowing the cross objection?

11. Issue notice to the respondents in both the appeals, returnable on

04.10.2021. Learned Advocate Mr. S. B. Ghatol Patil waives notice for

respondent No.1/1 and learned Advocate Mr. S. K. Chavan waives notice

for respondent Nos.1/2 in both the appeals.

12. Call record and proceedings.

[SMT. VIBHA KANKANWADI, J.]

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