Bombay High Court
Bhagwat Dadarao Gaikwad vs Vithalrao Dadarao Ambad And Anr on 30 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
25 SECOND APPEAL NO.848 OF 2012
BHAGWAT DADARAO GAIKWAD
VERSUS
VITHALRAO DADARAO AMBAD AND ANR
...
Advocate for Appellant : Mr. Suryawanshi Kamlakar J.
Advocate for Respondents No.1 and 2 : Mr. Shinde Anand S. (Absent)
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 30-08-2021.
ORDER :
1. Present appeal has been filed by the original plaintiff to challenge
the concurrent Judgment and decree. He had filed Regular Civil Suit
No.309 of 1996 before 2nd Joint Civil Judge, Junior Division, Kaij,
District Beed, for cancellation of sale deed and injunction. It came to
be dismissed on 07-02-2000. He challenged the same before District
Court, Ambajogai by filing Regular Civil Appeal No.49 of 2000. The
said appeal was heard by learned District Judge-2, Ambajogai and it
was dismissed on 19-04-2010. Hence, the present second appeal.
2. Heard learned Advocate Mr. K. J. Suryawanshi for the appellant.
Learned Advocate Mr. A. S. Shinde for respondents No.1 and 2 is
absent.
3. It is an admitted position that the plaintiff executed the sale
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deed in respect of suit land on 29-04-1980 in favour of defendant
No.1. However, the plaintiff had come with a case that as he was in
need of money, he had asked defendant No.1 to give a loan.
Plaintiff was in need of an amount of Rs.2000/- for the marriage of
his daughter. Defendant No.1 agreed to pay the same on the
condition that the plaintiff should execute a conditional sale deed
towards the security of the hand loan. Accordingly, the plaintiff as
he was in need of money, executed the sale deed, however, it was
not acted upon, it was Sham document. According to the plaintiff,
the possession was with him. Even on the date of the suit, it was
contended that the plaintiff is in possession. According to the
plaintiff, he tried to repay amount of Rs.2000/- in March 1996 to
defendant No.1. The amount was accepted, however, defendant
No.1 refused to reconvey the property. Thereafter, defendant No.1
executed a sale deed in favour of defendant No.2 on 07-05-1996.
Hence, the plaintiff prayed for the cancellation of the sale deed
dated 29-04-1980 and declaration that the sale deed executed by
defendant No.1 in favour of defendant No.2 is not binding on him.
4. The defendants have resisted the claim of the plaintiff by filing
written statements. It was submitted that it was an out and out
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sale.
5. After the evidence was led, both the Courts have come to the
conclusion on the basis of the evidence as well as legal points that
the plaintiff has failed to prove that the real transaction was different
and in fact defendant No.1 had got the Sham document executed in
his favour as a security for the hand loan. Both the Courts have
held that the plaintiff has failed to prove that he is in possession of
the suit land. It is held that the suit is not within limitation and,
therefore, the suit was dismissed and then the appeal was also
dismissed.
6. At the outset, the facts are also very much clear and on the
face of the record itself it can be seen that the suit appears to be
beyond the period of limitation. Even if for the sake of arguments
we accept that the real nature of the transaction was different, yet it
is hard to believe that a time for the repayment would not have
been stipulated under the oral contract. For the amount that was
taken around the sale deed dated 29-04-1980, the duration for
repayment could not have been for an indefinite period. Plaintiff's
own case is that it was repaid in March 1996 i.e. after about 16
years.
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7. Perusal of the contents of the sale deed though it appears that
there was some legal hitch raised by the lower Court to exhibit the
same, yet even if for the sake of arguments we consider the
contents of the same, they do not appear to be of a conditional sale
deed. Those conditions of the repayment are not embodied in the
document itself. When the sale deed was executed on 29-04-1980,
the suit for cancellation of that document in the year 1996 is
definitely beyond limitation as per Section 59 of the Limitation Act.
Interestingly no relief appears to have been prayed for the
reconveyance in specific words because if the suit would have been
for reconveyance and as per the terms the repayment that was done
after 16 years of the period was as per the terms itself then in that
event there was a possibility of holding the suit within limitation,
however, plaintiff has not come with such pleadings. Simple
cancellation of sale deed that was executed 16 years ago was
definitely hopelessly barred.
8. It has been tried to be contended on behalf of the appellants
that the sale deed was not exhibited and has not been properly
considered. So also the fact that for about eight to nine years, the
name of the plaintiff continued in the 7/12 extract has not been
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considered by both the Courts below. Mere continuation of the
name of the plaintiff in the 7/12 extract, cannot be taken as a
circumstance to prove that the sale deed was Sham. When the
plaintiff intended to give oral evidence in respect of some other
transaction which was not contemplated or not included in the sale
deed i.e. the documentary evidence, then such oral evidence
(because it would be beyond the scope of Section 92 of the Indian
Evidence Act) ought to have been strong enough. When every fact
was within the knowledge of the plaintiff, he slept over his alleged
rights for about 16 years. The law will not help such persons who
are sleeping over their rights.
9. The concurrent findings have been arrived at after considering
the oral, documentary evidence as well as the law points involved
and, therefore, in view of Kirpa Ram (since deceased through L.Rs.)
and Others vs. Surendra Deo Gaur and Others, reported in 2021 (3)
Mh.L.J. 250, as no substantial questions of law are being pointed
outed as contemplated under Section 100 of the Code of Civil
Procedure, the second appeal stands dismissed.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
