Meena Shamsundar Chandnani Thro. ... vs Kalpana Rajkumar Chandnani And ...
2021 Latest Caselaw 13047 Bom

                                           (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   SECOND APPEAL NO.316 OF 2021
                               WITH
                 CIVIL APPLICATION NO. 7844 OF 2021

 Sow. Meena w/o Shamsundar Chandnani                              = APPELLANT
                                                                  (orig.Defendant)

          VERSUS

 1.       Sow.Kalpana w/o Rajkumar
          Chandnani and another                                   = RESPONDENTS
                                                                   (orig.Plaintiffs)
                                           -----
 Mr. Anil S.Bajaj, Advocate for Appellant;
 Mr. SS Deshmukh,Advocate for Respondent No.2
                                       -----

                                  CORAM :          SMT.VIBHA KANKANWADI,J.

                                  DATE :           14th September, 2021.
 PER COURT :-

1. Present appeal has been filed by original

defendant to challenge the judgment and decree

passed by learned Adhoc District Judge-1, Hingoli

in RCA No.6/2015, dated 10.12.2020, whereby, though

declaration of ownership of plaintiff No.2 in

respect of half share by the trial Court has been

upheld; yet the prayer of injunction against the

defendant is set aside and then the decree has been

directed to be sent for effecting partition of the

suit property to the Collector.

2. Present respondents are the original

plaintiff Nos.1 and 2. They had filed RCS No.

120/2003 before Civil Judge, Junior Division,

Hingoli, which came to be decreed by learned 2 nd

Joint Civil Judge, JD, Hingoli on 14.1.2015. The

present appellant challenged the same in the

aforesaid appeal, which can be said to have been

partly allowed by the learned Adhoc District Judge,

Hingoli. Hence, this appeal.

3. Heard learned Advocates appearing for the

respective parties.

4. It has been vehemently submitted on

behalf of the appellant that both the Courts below

have not considered the legal points as well as

oral and documentary evidence in its proper

perspective. It had come on record that original

plaintiff No.1 had filed RCS No.280/2002 against

the appellant for injunction, preventing him from

getting his entry relating to the suit property in

the revenue record. In that suit, the plaintiff

could have asked for partition as well as

possession. However, no such prayer was made.

Therefore, it ought to have been seen by both the

Courts below that present suit was barred under

Order II Rule 2 of CPC. Further, both the Courts

below have failed to appreciate and see the scope

of Sections 91 and 92 of the Evidence Act. No

permission is given to lead oral evidence apart

from the documentary evidence. In fact, the

witness of the defendant had stated that since

husband of the defendant was running short of

amount of Rs.40,000/- for purchasing the suit

property, he had taken it from plaintiff's husband.

Plaintiff's husband had put a condition that till

that amount is returned, sale-deed would be

executed in the name of plaintiff No.1 as well as

the defendant. Reliance has been placed on the

decision in the case of Smt. Gangabai w/o Rambilas

Gilda Vs. Smt. Chhabubai w/o Pukharajji Gandhi -

(1982) 1 SCC 4, wherein, it has been held that, -

" The bar imposed by sub-section 92 (1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not 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."

5. In fact, name of the plaintiff in the

sale-deed was nominal and, therefore, this evidence

ought to have been allowed to be brought on record.

The relationship between the parties is not

considered and, in fact, it was the cordial

relationship between them. Therefore, possibility

of not raising any objection, till the suit by the

defendant, could not have been interpreted against

her. Substantial questions of law are arising in

this case and, therefore, he prayed for admission

of the Second Appeal.

6. Per contra, learned Advocate appearing

for Respondent No.2, supported the reasons given by

both the Courts below and submitted that no

substantial questions of law are arising in this

case.

7. At the outset, we can say that the point

of the suit being barred by order II Rule 2 of CPC,

appears to have not been raised by the present

appellant before both the Courts below. Neither

issue to that effect was framed nor it was raised

in the appeal memo. However, since it has been

tried to be projected as a law point, it is

required to be considered as to whether there is

necessity to admit the Second Appeal on this count.

In her judgment, learned 2nd Joint Civil Judge, JD,

has specifically stated that the defendant has

admitted in her written statement that the

plaintiff had filed RCS No.280/2002 against her, as

the defendant was filing applications before the

Revenue Courts for deletion of plaintiff's name.

However, thereafter, none of the parties had

pressed that issue during further course of the

trial. It also appears that plaint, written

statement, judgment, if any, in the said matter has

not been produced at all before the Court below.

Without there being production of these documents,

it cannot be said that, that case was also dealing

with the same cause of action between the same

parties and even in that case the present prayers

could have been asked for. The ultimate result in

that suit has not been produced and it cannot be

also spelt out from both the Courts below.

Therefore, now without any base, we cannot say that

substantial question of law regarding the bar of

the suit under Order II Rule 2 of CPC, is arising

in this case.

8. Original plaintiff No.1 had come with a

case that she, along with deft.No.1, purchased the

suit property bearing Block No.35(Kha) of village

Santuk Pimpri on 3.9.1998 and it appears that there

were two sale-deeds, which have been produced at

Exhibit-47 and 48. After the sale-deed, Mutation

entry No.319 and 321 were sanctioned, because of

which, the land came to be mutated in the name of

plaintiff No.1 and defendant. The plaintiff has

clearly pleaded that after the sale-deed, she along

with the defendant, were enjoying the property. But

when the defendant tried to delete name of the

plaintiff from the 7/12 extract, she had filed said

RCS No.280/2002; still the defendant continued to

alienate the property and dispossessed the

plaintiff. Therefore, the plaintiff requested the

defendant on 9.6.2003 to effect partition and allot

her share in the property. Hence, the suit for

partition and separate possession was filed.

9. The defendant denied those averments,

which were amounting to allegations against her. It

was contended that husband of the defendant as well

as husband of the plaintiff are real brothers and

they used to reside together. Her husband had no

sufficient amount at the time of sale-deed and,

therefore, it was mutually agreed that nominal

joint sale-deed would be executed and later on the

defendant would pay the amount to plaintiff's

husband. Therefore, according to the defendant,

half of the consideration was paid by plaintiff's

husband and remaining half was paid by husband of

the defendant. Defendant's husband tried to return

the amount of Rs.40,000/- to the plaintiff's

husband, however, he refused to accept the same.

The defendant contended that she is sole owner of

the property and plaintiff has no title and

interest in the same.

10. The plaintiff has examined herself and

other witnesses to prove execution of the sale-deed

and possession; whereas the defendant has examined

her power of attorney and two more witnesses.

Important point to be noted is that the defendant

has kept herself away from the witness box for the

reasons best known to her. In fact, the evidence

of plaintiff No.1 was recorded through Court

Commissioner. It will not be out of place to

mention here that it appears that after the remand

of the case to the Trial Court, it was brought on

record that during pendency, the plaintiff No.1 has

sold the suit property to plaintiff No.2 and,

therefore, she was posed as a plaintiff. The

evidence of the plaintiff would show that she had

given amount of Rs.40,000/- and then joint purchase

was made. It appears that the defendant's power of

attorney in his testimony has not at all taken up

the plea that since he was running out of the

funds, he had taken loan from husband of the

plaintiff and then recorded the sale-deed in the

joint name of plaintiff No.1 and defendant. Any

way, though the point was not raised before the

courts below; yet the law cannot be given a go-bye.

The defendant is now trying to take a plea that

name of plaintiff No.1 is nominally taken. In

fact, the appellant cannot raise the point that she

was not allowed to lead evidence to bring separate

agreement on record in view of Section 91 of the

Evidence Act. The ratio laid down in the decision

of Smt. Gangabai (cited supra) cannot be

questioned; rather opportunity was given to the

defendant to lead evidence and then the defendant

has examined DW 2 - Shaikh Hasan. Interesting

point is that DW 2 - Shaikh Hasan is not an

attesting witness to the sale-deeds. Why the

vendor and/or the attesting witness and scribe were

not examined is a question. Further, it can be seen

that the said purchase was done on 3.9.1998 by two

separate sale-deeds. DW 1 - Shamsunder has not

stated as to when he had gone to repay the amount

of Rs.40,000/- to husband of plaintiff No.1 and

then he had refused. The defendant could not have

taken too long to refund the amount. So also what

was the exact oral contract between Shamsunder and

husband of plaintiff Noi.1, is not explained by DW

1 - Shamsunder. Therefore, it would be rather said

that though opportunity was given to lead that

evidence, as contemplated under Section 91 of the

Evidence Act; yet that opportunity has not been

taken by the defendant. Hence, now it cannot be

raised as substantial question of law.

11. It appears that the first Appellate Court

found that the Trial Court has arrived at a

conclusion that plaintiff No.1 is in possession of

her half share when, in fact, the suit was for

partition and then the Trial Judge granted

injunction which was not proper and, therefore,

only that part of granting injunction, has been set

aside and it appears to be correct and legal.

12. No substantial questions of law are

arising in this case, as contemplated under Section

100 of CPC. Hence, the Second Appeal stands

dismissed. The Civil Application stands disposed

of.

(SMT. VIBHA KANKANWADI) JUDGE

BDV