Bombay High Court
Kavita Raghunath Jadhav vs Bhimrao Dagdooji Aarak on 22 July, 2021
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.58 OF 2021
KAVITA W/O RAGHUNATH JADHAV
VERSUS
BHIMRAO DAGDOOJI AARAK
...
Mr. D. S. Bharuka, Advocate for appellant.
Mr. D. K. Kulkarni and Mr. D. L. Pathade, Advocates for respondent .
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 22.07.2021
ORDER :-
. Heard learned Advocate Mr. D. S. Bharuka for the appellant and
learned Advocate Mr. D. K. Kulkarni and Mr. D. L. Pathade for the
respondent.
2. Present appellant is the original defendant and present
respondent is the original plaintiff. Plaintiff filed Special Civil Suit
No.357 of 2010 before learned Civil Judge Senior Division, Aurangabad
for declaration and mandatory directions. The suit was tried before the
5th Joint Civil Judge, Senior Division, Aurangabad. It came to be
decreed on 11.03.2015. It was declared that the sale deed dated
31.03.2004 executed by plaintiff in favour of defendant is null and void.
Present appellant - original defendant approached learned District
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Court, Aurangabad by filing Regular Civil Appeal No.112 of 2015. It
was heard by learned District Judge-12, Aurangabad and the appeal was
dismissed, however, the judgment and decree passed by the learned Trial
Judge was modified. Declaration was granted that the plaintiff is the
owner of the suit property and the copy of the judgment was directed to
be sent to Sub-Registrar-1, Aurangabad along with true photocopy of the
sale deed i.e. Exhibit-36. Hence, the defendant is in appeal before this
Court.
3. It has been vehemently submitted on behalf of the appellant that
both the Courts below have not properly considered the facts as well as
points of law involved. Admittedly, the plaintiff had executed sale deed
in favour of defendant on 31.03.2004. Plaintiff could not have travelled
beyond the contents of the sale deed, but he has tried to give extrinsic
evidence beyond the contents of the sale deed. He filed the suit on
19.07.2010 and according to the defendant, therefore, it was beyond the
period of limitation, as he wanted some declaration in respect of the sale
deed which was executed on 31.03.2004. The learned Trial Judge held
that the suit will not be governed by Article 59 of the Limitation Act, but
residuary provision under Article 113 of the Limitation Act would be
applicable. However, the learned District Judge held that the said sale
deed is a nominal sale deed and not an out and out sale. The learned
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first Appellate Judge also held that Section 59 of the Limitation Act will
not be applicable. However, it was not made clear as to how the suit
was within limitation and which specific Article would be applicable.
There was no prayer for modification of the decree by the original
plaintiff before the first Appellate Court, yet, suo moto the modification
has been made. Substantial questions of law are, therefore, arising in
this case regarding the limitation as well as the fact that the learned
Appellate Court has erred in considering the said sale deed as nominal
sale deed. Learned Advocate for the appellant prayed for admission of
the second appeal as well as stay to the execution of the impugned
decree.
4. Per contra, the learned Advocate appearing for the respondent -
original plaintiff supported the reasons given by both the Courts below
and submitted that they have appreciated the evidence properly as well
as the law point involved. There was no question of application of
Article 59 of the Limitation Act. The plaintiff was in need of money, but
since he was aged around 65 years old, he was not entitled to get or was
not able to get loan from any financial institution. So also, he was in
need of money for the marriage of his daughter. Defendant is the
relative of the plaintiff. Under such circumstance, he executed impugned
sale deed in favour of defendant and put the proposal to Shamrao Vithal
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Cooperative Bank for loan. That loan was sanctioned in the name of
defendant, however, the amount has been received by the plaintiff.
Plaintiff had agreed to reconvey the suit property after the mitigation of
the loan. He has accordingly paid certain installments of the loan and
the defendant never objected to the same. This fact has been considered
by both the Courts below and they have arrived at the conclusion that
the alleged sale deed was a nominal sale deed and it was not an out and
out sale, so also the plaintiff has not parted with the possession of the
suit property.
5. At the outset, when the sale deed was admittedly executed on
31.03.2004, the first and the foremost question is whether the plaintiff
could have been allowed to travel beyond the document. Whether the
plaintiff could have been allowed to lead evidence beyond the contents
of the document in view of Sections 91 and 92 of the Indian Evidence
Act. One more fact that is required to be considered from the plaint that
plaintiff has not contended under which provisions of law, the sale deed
was null or void. He has not come with the case that the said document
was got executed from him either by coercion or by fraud or
misrepresentation. Then, if the contract was valid, then how the sale
deed would become null and void is a question. This aspect appears to
have not been touched by both the Courts below though involved in the
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present case. Further, definitely, the fact of execution of the document
was within the knowledge of the plaintiff, as he himself has executed it
in the year 2004. He cannot take a defence that he was not aware about
the illegality or nullity of the document when he was executing it. Then
the question arises, when he came to know that the said document is
null and void. Whether Article 59 or 113 are applicable to the facts of
the case is definitely required to be gone into as the learned first
Appellate Judge has not considered that point properly and has not
specifically held which Article would be applicable to bring that suit
within limitation, which came to be filed on 19.07.2010. Under such
Hence, Second Appeal is admitted. Following are the substantial
questions of law :-
(I) Whether both the Courts below failed to consider the
provisions of Section 91 and 92 of the Evidence Act and the
learned Trial Judge erred in allowing the plaintiff to lead evidence
beyond the scope of the said provisions under Evidence Act?
(II) Whether the suit was maintainable in the form it was
presented without pleading under which provisions of law the sale
deed is null and void?
(III) Whether the first Appellate Court erred in holding that the
registered sale deed dated 31.03.2004 executed by the plaintiff in
favour of the defendant is a nominal sale deed?
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(IV) Whether the suit was within limitation?
(V) Whether the impugned judgments and decrees required
interference?
6. Issue notice to the respondent. Learned Advocate Mr. D. K.
Kulkarni waives notice for the respondent.
7. Call record and proceedings.
[SMT. VIBHA KANKANWADI, J.]
scm
