Smt.Yashodabai Ganpatrao Pawar ... vs Shri.Bahuba Waman Shinde
2022 Latest Caselaw 10121 Bom

                                                                                14 SA- 657-2022.doc

BDP-SPS


   BHARAT
   DASHARATH
   PANDIT                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
   Digitally signed by
   BHARAT
   DASHARATH PANDIT
                                           CIVIL APPELLATE JURISDICTION
   Date: 2022.10.06
   19:41:38 +0530
                                          SECOND APPEAL NO.657 OF 2022
                                                    ALONGWITH
                                         CIVIL APPLICATION NO.471 OF 2018
                                                        IN
                                          SECOND APPEAL NO.657 OF 2022


                         Smt. Yashodabai Ganpatrao Pawar
                         since deceased through her
                         legal representatives
                         1 Shri Shivaji Ramchandra Pawar
                         and Others.                                    ....Appellant(s)

                                      V/s

                         Shri Bahuba Waman Shinde and Others        ....Respondent(s).
                         ----
                         Mr. Nikhil Wadikar a/w Mr. Niranjan Kanade a/w Mr. Malhar Pawar
                         i/b Mr. Nandu Pawar for the Appellant(s).
                         ----
                                         CORAM: NITIN W. SAMBRE, J.

                                            DATE    : OCTOBER 03, 2022

                         P.C.:

                         1]      This Second Appeal is against the concurrent findings recorded

                         by both the Courts below.



                         2]      Appellant herein/original Plaintiff initiated Regular Civil Suit

No.259 of 2001, seeking declaration that the Appellant/Plaintiff is the

14 SA- 657-2022.doc

owner of the suit property and the alleged Sale Deed executed in

favour of father of the Respondents/Defendant on 26/04/1976 be

declared as cancelled as the same is contrary to law and not binding

on the Plaintiff and an injunction is sought that possession of the

Plaintiff be not interfered with. Said claim was substantiated with

pleadings that son-in-law of the Plaintiff viz. Anandrao Ganpatrao

Sabale has practised fraud for self interest, obtained thumb impression

of the Appellant/Plaintiff and in connivance with the father of the

Defendants got executed agreement of sale. It is further claimed that

since Plaintiff is an uneducated lady, the alleged Sale Deed of

26/04/1976 was never executed by her and the said document is

sham and bogus. It is further claimed that Mutation Entry based on

the aforesaid fraudulent document was carried of which she got

knowledge on 16/01/1996.

3] Aforesaid claim was resisted by the Respondents/Defendants

through Written Statement-Exhibit-52. According to the Respondents,

only after conducting proper inquiry, property in question was

purchased by their father. It is claimed that before Sale Deed was

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effected, agreement of sale was also executed for which total

consideration agreed was Rs 40,000/-, of which Rs 25,000/- was

already paid. It is their contention that both the documents are duly

registered as they are for consideration of above Rs 100/- in relation

to immovable property. As such, it is claimed that sale of the property

is in accordance with what has been stated under Section 54 of the

Transfer of Property Act.

4] Trial Court has framed issues at Exhibit-62. Amongst other

issues are, whether Plaintiff has proved that she is a land owner of the

suit property, which has been answered against her. Similarly, issue

as to whether the Plaintiff has proved that Sale Deed dated

26/04/1976 executed by her father without accepting any

consideration was fraudulent and other issue viz whether Plaintiff has

proved that Sale Deed is not binding on her are also answered against

the Plaintiff.

5] Suit came to be dismissed vide judgment dated 31/7/2009

passed by Civil Judge, Junior Division, Satara. Plaintiff feeling

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aggrieved preferred an Appeal being Regular Civil Appeal No. 334 of

2009 which was also dismissed on 07/08/2017. As such, this Second

Appeal by original Plaintiff against the concurrent findings.

6] Contentions of the Counsel for the Appellant/Plaintiff are, even

if both documents viz agreement of sale dated 09/06/1975 and Sale

Deed-Exhibit-132 dated 26/04/1976 are registered documents,

execution of agreement of sale is not disputed, however what is

disputed is contents of agreement of sale. According to Counsel for

the Appellant, Sale Deed was allegedly never executed by the

Appellant and as such burden under Section 100 and 101 of the

Indian Evidence Act shifts on the Respondents/Defendants to prove

that they got the Sale Deed executed by paying valid consideration.

He would as such urge that issue No.2 which is framed by the Trial

Court is incorrect, so also lower Appellate Court has shown same line

of appreciation. He would further urge that there is continuous cause

of action as Sale Deed in question was never executed by the

Appellant and that being so, Section 22 of the Limitation Act will

attract. It is further claimed that land in question is a mirashi

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property and as such approval from the competent revenue authority

is required for execution of Sale Deed which was not obtained at the

time of executing Exhibit-132.

7] I have appreciated said submissions.

8] Fact remains that both the documents i.e. Sale Deed dated

26/04/1976-Exhibit-132 and agreement of sale dated 09/06/1975

which preceded aforesaid Sale Deed are registered documents which

were executed for consideration of more than Rs 100/- in relation to

the immovable property. Fact remains that total consideration as

mentioned in the agreement of sale was Rs 40,000/- of which

Rs 25,000/- was already accepted. It was agreed that Sale Deed

would be got executed within one year after payment of balance

consideration. Possession was to be handed over by the Appellant at

the time of execution of Sale Deed.

9] In this background, if we appreciate recitals in the Sale Deed-

Exhibit-132, what can be noticed is, said document contains agreed

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consideration of Rs 40,000/- of which Rs 25,000/- was paid on

09/06/1975 i.e. on the date of agreement of sale. It further speaks of

possession being handed over to the father of the Respondents.

10] It is claimed by the Counsel for the Appellant that Appellant was

an uneducated lady and Sale Deed was executed by putting thumb

impression, by drawing support from the judgment of the Apex Court

in the matter of Annapurna Barik Dei and another vs. Inda Bewa and

others reported in AIR 1995 Orissa 273.

11] I have perused the Plaint. The Plaint contains vague reference

to the agreement of sale without any specification. It appears that

said agreement of sale was produced on record by the Respondents,

which was executed on 9th June, 1975. The said agreement contains

recitals about agreed total consideration of Rs 40,000/- of which Rs

25,000/- appeared to have been received, whereas remaining Rs

15,000/- were to be received after permission was obtained from the

Office of Sub-Divisional Officer. It also contains recitals that

possession shall be handed over at the time of execution of Sale Deed.

14 SA- 657-2022.doc

The Sale Deed-Exhibit-132 was executed and registered on

26/04/1976. Same also contains recitals about aforesaid agreement

of sale of 09/06/1975 and also permission obtained by the Appellant

from the Office of Sub-Divisional Officer for executing Sale Deed,

dated 16/04/1976.

12] As such, what can be noticed is, Sale Deed appears to have been

executed after obtaining permission from the Sub-Divisional Officer in

continuation of agreement of sale dated 09/06/1975. Neither

agreement of sale dated 09/06/1975 is questioned nor the permission

referred to in the Sale Deed which was granted by the Sub-Divisional

Officer on 16/04/1976 for transfer of the land. It is the case of the

Appellant that Sale Deed was never executed by the Appellant. It is

also claimed that agreement of sale was executed under the influence

of Anandrao Ganpatrao Sabale, son-in-law of the Appellant/Plaintiff.

Fact remains that Anandrao Ganpatrao Sabale was alive on the date of

recording of evidence and still he was neither examined nor added as

party-defendant to the suit. Appellant has framed the suit in

calculated manner so as to cast the burden on the Defendants by

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taking undue advantage/benefit of her illiteracy based on provisions

of Sections 101 and 102 of the Indian Evidence Act. However, fact

remains that agreement of sale is a registered document, permission

from Sub-Divisional Officer was obtained at the behest of the

Appellant on 15/4/1976 before execution of Sale Deed, Mutation

Entry pursuant to the Sale Deed executed way back in 1981 which

was objected to by the Appellant sufficiently speaks of conscious

knowledge of the Appellant about existence and execution of Sale

Deed. It also demonstrates that the Appellant in 1982 has participated

in the revenue proceedings pertaining to Mutation Entry and for

seeking permission from revenue authority for transfer of the land.

13] Article 59 of the Limitation Act prescribes limitation for three

years for questioning Sale Deed which starts running from the fact

Sale Deed was within the knowledge of the Plaintiff. Fact remains

that permission granted by the Sub-Divisional Officer on 15/4/1976

in favour of the Appellant for transferring the land and subsequent

mutation proceedings of 1981 in which Appellant has participated

sufficiently prompts this Court to infer that suit claim of the Appellant

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was brought in action beyond limitation. Fact remains that Plaintiff

herself has not entered in the witness box and is examined through

her Power of Attorney holder i.e. daughter-in-law. The initial burden

ought to have been discharged by the Appellant by entering in witness

box which she has failed to. Even document of Power of Attorney is

also not proved. As such, having regard to the law laid down by the

Apex Court in the matter of Vidyadhar vs. Manikrao and another

reported in (1999) 3 SCC 571, testimony of the Power of Attorney

holder for the Appellant cannot be accepted to the extent of facts

which were within the personal knowledge of the Plaintiff/Appellant.

14] In the aforesaid backdrop, claim put-forth that provisions of

Section 16 of the Indian Contract Act will come into play will be

hardly of any significance, as it is established from the record that the

Appellant has not approached the Court with clean hands. In this

background, claim put forth by Counsel for the Appellant that burden

was not discharged by the Respondents to prove execution of Sale

Deed cannot be inferred. Another mitigating circumstances such as

status of the Appellant as widow, admission on her part that her son

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was alcoholic, admission to the execution of agreement of sale dated

09/06/1975 without admitting contents therein, recitals about loan

repayment, the fact that Anandrato Ganpatrao Sabale who allegedly

influenced execution of the transaction being alive on the date of

recording of evidence and not made party to the proceedings rightly

prompted the Courts below to dismiss the claim.

15] In the aforesaid backdrop, it cannot be said that Courts below

have committed an error in recording findings against the

Appellant/Plaintiff. That being so, no case for interference is made

out. Second Appeal as such fails and same stands dismissed. As a

consequence pending Interim Application is also dismissed.

( NITIN W. SAMBRE, J. )