Mahendra Ganpatrao Kshirsagar vs Madhukar Nathhuji Shahane
2022 Latest Caselaw 9057 Bom

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         NAGPUR BENCH AT NAGPUR

                                                        SECOND APPEAL NO.253/2022

                                                       Mahendra Ganpatrao Kshirsagar
                                                                ...Versus...
                                                        Madhukar Nathhuji Shahane
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Office Notes, Office Memoranda of Coram,                                                                             Court's or Judge's orders
appearances, Court's orders or directions
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                                                                         Shri S.S. Joshi, Advocate for appellant
                                                                         Smt. S.W. Deshpande, Advocate for respondent

                                                                                        CORAM : AVINASH G. GHAROTE, J.

DATE : 12/09/2022

1. Shri Joshi, learned counsel for the appellant challenges the reversal of the judgment dated 18/03/2016, passed by the learned Trial Court in a suit for possession, filed by the appellant/original plaintiff, based upon the title under the sale-deed dated 14/06/2006 claimed to have been executed in his favour by the original defendant/respondent. It is contended that though the sale-deed contained clause regarding delivery of possession, the possession was not handed over as there were standing crops at that point of time and there was oral agreement to deliver the possession after the harvesting was done. Since the possession was not delivered, by notice dated 22/01/2009, the defendant was called upon to deliver the possession. As the same was not done, a suit for possession was filed on 28/04/2009. 1209 SA 253 of 2022.odt

2. The defendant/respondent on service, entered appearance and filed his written statement to the counter- claim on 09/12/2009 (pg.60), claiming a decree for cancellation of sale-deed dated 14/06/2006 on the ground that it was a nominal transaction for securing hand loan received by the defendant from the plaintiff. A relief was also claimed to declare the sale-deed 14/06/2006 as null and void. It is contended that the attesting witness to the sale-deed one Kishor Sonbarse was examined by plaintiff as PW-2, who has supported the claim of the plaintiff. The other witness to the sale-deed was one Amol Shahane, the son of the defendant who was not examined. It is also contended that the story put forth in the counter-claim was that since the marriage of the defendant's daughter was to take place on 16/06/2006 and there was paucity of funds, one Kishor Pakade, an acquaintance, had assured to procure the funds, for which purpose, he had taken the defendant to the plaintiff on 12/06/2006, on which date the plaintiff agreed to grant him a loan of Rs.1,10,000/- but sought sale-deed of the property in question as security. The sale-deed was drafted on 13/03/2006, executed and registered on 14/06/2006. A plea was also raised by the defendant that out of the total loan of Rs.1,10,000/-, which is claimed by him to be a hand loan, a sum of Rs.70,000/- was only received and nothing else.

1209 SA 253 of 2022.odt

3. The property in question is Survey No.12/4 admeasuring 2.65 HR situated at Mouza Warha Tq. Morshi, District Amravati. The sale-deeds in questions are two documents both dated 14/06/2006, one for the consideration of Rs.1,33,500/- and the other for Rs.2,29,500/-.

4. It is further contended that though it was stated in the written statement that the alleged loan had taken place in presence of Amol Shahane (the son of the defendant) and one Kishor Pakade, both of them have not been examined, rather on the contrary, persons, who were not mentioned in the written statement-cum-counter claim who do not have any knowledge about the alleged transaction, were examined as DW-3 (Ramdas) and DW-2 (Anil), due to which the learned Trial Court has disbelieved their evidence as there was no reference of their being aware in any nature of the transaction in question and so also there was no averment in that regard in the written statement-cum-counter claim. He further submits that the Trial Court has rendered a finding that the transactions were properly valued as per the market rate and they were not undervalued. It is also contended that except for the version of the defendant himself, there was no material on record to indicate that the transactions in question were loan transactions, as claimed by the defendant/respondent and therefore the learned Appellant Court could not have reversed the well considered judgment of the Trial Court.

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5. This Court, by the order dated 01/08/2022, has already framed the substantial questions of law. The parties are willing to workout the matter finally at the stage of admission. The paper-book of the first Appellate Court has also been placed on record.

6. List the matter on 26/09/2022, by which time, the exhibited documents before the learned Trial Court be placed on record.

7. The interim relief to continue till then.

(AVINASH G. GHAROTE, J.)

Wadkar

Digitally signed bySHAILENDRA SUKHADEORAO WADKAR Signing Date:14.09.2022 11:01