Motising Kisansing Choudhary Lrs ... vs Bhagwatibai Omprakash Choudhary
2023 Latest Caselaw 13062 Bom

Bombay High Court

Motising Kisansing Choudhary Lrs ... vs Bhagwatibai Omprakash Choudhary on 19 December, 2023

Author: S. G. Mehare

Bench: S. G. Mehare

2023:BHC-AUG:27062

                                                       1              28 S.A. No. 358-2019-.odt




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                               SECOND APPEAL NO. 358 OF 2019

                     Motising s/o Kisansing Choudhary,
                     Since deceased through L.Rs.

               1]    Prithviraj Motising Choudhary,
                     Age : 66 Years, Occ. Business

               2]    Pralhad Motising Choudhary
                     Age : 59 Years, Occ. Business

               3]    Deepak Motising Choudhary,
                     Age : 35 Years, Occ. Business

                     Appellant Nos. 1 to 3
                     R/o. Balaji Galli, New Jalna,
                     Taluka and District Jalna.

               4]    Lila Baldeo Gena
                     Age : 65 Years, Occ. Household,
                     R/o. College Road, Jalna                     ..Appellants
                     District Jalna.                            (Org. Plaintiff)
                                                              (Appellants in FA)
                     VERSUS

               Bhagwatibai w/o Omprakash Choudhary,
               Age : 45 Years, Occ. Household,                    .. Respondent
               R/o. Shivaji Nagar (Mhada) Jalna.                  (Org. Defendant)
                                                                  (Respondent in FA)

                                              .....
                           Advocate for Appellants : Mr. S. P. Shah
                                              ......


                                                   CORAM : S. G. MEHARE, J.

Dated : December 19, 2023

PER COURT :-

1. Heard the learned counsel for the appellants.

2. This is second appeal against the two concurrent judgments

against the appellants. The appellants were the plaintiffs. The

plaintiffs had filed a suit for declaration that the sale deed was

obtained by fraud and misrepresentation. Both Courts, on appreciating

the facts held that the plaintiff failed to prove that the fraud was

played and the sale deed was obtained by misrepresentation. It has

also been held that the plaintiff failed to prove that his mental

condition was not good.

3. The learned counsel for the appellants has vehemently argued

that both Courts did not consider the cumulative effect of each

circumstance that establishes the fraud, misrepresentation and the sale

deed is without consideration. He also vehemently argued that the

defendant took the advantage of strained relationship between the

plaintiff and his sons. The situations, were also not considered that

since there were quarrels with the sons, the defendant trapped him.

He also argued that the possession of the suit premises was never

handed over. Normally, the purchaser would not wait till the suit

premises is vacated. He further added that both Courts failed to

appreciate the evidence correctly. Therefore, they arrived at the wrong

conclusion. He submits that playing fraud and misrepresentation

along with no consideration towards the sale transaction are the

substantial questions of law involved in this case.

4. The Court had gone through the plaint. It appears from the

plaint that the sons of the plaintiff had filed a suit for injunction

restraining him from not alienating the suit premises. Hence, the sale

transaction was executed. He was not residing in the suit premises.

The plaintiff's family relations were disturbed. They had a dispute

over the lands and properties. The plaintiff was to leave the suit

premises and had to reside in the rented premises near the house of

his daughter. So, it could be inferred that he went to the shelter of his

daughter. Playing fraud and misrepresentation are the questions of

facts. It is to be specifically pleaded and proved. Both Courts have

appreciated the evidence and arrived at the conclusion that the

plaintiff utterly failed to prove that the sale deed was obtained

fraudulently and under misrepresentation. The strained relationships

between them, has also not been proved to the extent that the plaintiff

never intended to sell the suit premises. Since the ground on which

cancellation of the sale deed was sought, as observed above, were the

questions of facts. The last fact finding Court i.e. First Appellate Court

also appreciated the facts correctly. In second appeal, the Court cannot

reappreciate the evidence, unless the evidence is improperly

appreciated or the Court did not consider the material available on

record. It does not happen, in the case at hand. The Court did not find

reasons to re-appreciate the evidence.

5. Considering the findings of both Courts, the Court is not satisfied

that there are material or questions of substantial law involved in this

case. Both judgments and decrees are legally correct and proper.

6. Hence, for the above reasons, the appeal stands dismissed at the

admission stage.

( S. G. MEHARE, J. ) ysk/