Chandur Bazar Taluka Shetki ... vs Ashok S/O Ramrao Deshmukh (Dead) ...
2022 Latest Caselaw 5363 Bom

                                                                             909 SA-185-2020
                                               1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.
                          SECOND APPEAL NO.185 OF 2020
               [Chandur Bazar Taluka Shetki Sahakari Sale Purchase Sanstha ..Vrs..
                      Ashok Ramrao Deshmukh (dead) through its LRs]
_______________________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions        Court's or Judge's order and Registrar's orders.
                     Shri. V. A. Kothale, Advocate for Appellant.

                             CORAM : S. M. MODAK, J.

DATE : 14th JUNE, 2022.

. Heard learned Advocate for appellant/plaintiff.

2. The suit is filed by the plaintiff for possession of the suit property on the basis of two sale deeds executed by the defendant nos.1 and 2-husband and wife. The defendant no.1 was working in the society as a salesman. He has misappropriated the sale proceeds.

3. Plaintiff/Society came with the case that after giving possession, both the defendants have forcibly dispossessed the plaintiff.

4. As against this, these defendants have denied the theory of misappropriation and labeled the sale deed as a nominal sale deed and also denied handing over possession of the same and then forcible dispossession. Both the parties have adduced the evidence before the learned Trial Court, the learned Trial Court accepted the case put up by the plaintiff and passed possession decree. It was challenged by the defendants. The First Appellate Court reversed the said judgment, it is on the ground that two sale deeds does not mention that consideration was adjusted towards misappropriated amount, whereas according to the appellant, this finding is not correct particularly for the reason that the defendant no.1 has 909 SA-185-2020

admitted about misappropriation. It is submitted that the defendants ought to have adduced their evidence that they have attempted to return the amount.

5. It is true that the defendants have examined number of witnesses. They are on the point of possession of defendants. After hearing the learned Advocate and perusing the judgments, what transpired is that two sale deeds are executed by adjusting the misappropriated amount towards consideration of sale deeds. The defendants on the one hand have denied the theory of misappropriation and on the other hand they have not adduced any evidence to prove that they have attempted to return the amount. Hence, I am inclined to issue notice before admission by framing following question of law :

i) Whether the First Appellate Court erred in over looking the fact that the defendants have not adduced any evidence to prove that they have attempted to return the amount as mentioned in the sale deeds ?

6. Record and Proceedings be called. Matter be kept after five weeks.

                                                 JUDGE


TAMBE
                   Digitally signed by
        ASHISH     ASHISH
        ASHOKRAO   ASHOKRAO TAMBE
                   Date: 2022.06.16
        TAMBE      10:50:03 +0530