Bombay High Court
Bhivsen Yadavrao Bhatane Died Lrs And ... vs Ram Sambha Murkute And Ors on 6 November, 2025
2025:BHC-AUG:30257
1 sa 426.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 426 OF 2005
Bhivsen S/o Yadavrao Bhatane,
Died L.Rs.
1. Bhivrabai w/o Bhivsan Bhatane,
age 62 years, Occu. : Household,
2. Vishwanath S/o Bhivsan Bhatane,
Since deceased through his L.Rs.
2A Mayadevi w/o Vishwanath Bhatane,
Age : 50 Years, Occu. : Household,
R/o Wale English School,
Khadgaon Road, Latur.
2B Akshay s/o Vishwanath Bhatane,
Age : 29 Years, Occu. : Agril.,
R/o Wale English School,
Khadgaon Road, Latur.
3. Nagnath S/o Bhivsan Bhatane,
Age : 33 Years, Occu. : Service,
R/o Raiwadi, Tq. Chakur,
District Latur.
4. Shailubai w/o Janardhan Kendre,
Age : 40 Years, Occu. : Household,
R/o Kendrewadi, Tq. Ahmedpur.
5. Nilubai w/o Sugriv Karad,
Age : 37 Years, Occu. : Household,
R/o Raiwadi, Tq. Chakur.
6. Kalubai w/o Vaijinath Chate,
Since deceased through her L.Rs.
2 sa 426.05
6A Tukaram s/o Vaijnath Chate,
Age : 38 Years,
6B Dnyanoba s/o Vaijnath Chate,
Age : 35 Years,
Both R/o Hadoli, Post Satala,
Tq. Chakur, Dist. Latur. .. Appellants
Versus
1. Ram s/o Sambha Murkute,
Age : 68 Years, Occu. : Agril.,
Since deceased through his L.Rs.
1A Wanchabai w/o Ram Murkute,
Age : 85 years, Occu. : Household,
R/o Raywadi, Tq. Chakur,
Dist. Latur.
1B Muktabai w/o Rukmaji Nagargoje,
Age : 36 Years, Occu. : Household,
R/o Godhala, Tq. Renapur,
Dist. Latur.
1C Vanita w/o Dnyanoba Nagargoje,
Age : 31 Years, Occu. : Household,
R/o Ramwadi, Tq. Chakur,
Dist. Latur.
2. Madhav s/o Ram Murkute,
Age : 45 Years, Occu. : Agril.,
Since deceased through his L.Rs.
2A Kerba s/o Madhav Murkute,
Age : 38 Years, Occu. :
2B Bhagwan s/o Madhav Murkute,
Age : 34 Years, Occu. :
2C Indubai w/o Madhav Murkute,
Age : 60 Years, Occu. :
3 sa 426.05
All R/o Raywadi, Tq. Chakur,
Dist. Latur.
3. Ganu s/o Ram Murkute,
Age : 32 Years, Occu. :
R/o Raiwadi, Tq. Chakur,
Dist. Latur. .. Respondents
Shri D. Y. Bhadekar and Shri R. R. Suryawanshi, Advocates for
the Appellants.
Shri B. R. Kedar, Advocate h/f Shri S. B. Madde, Advocate for the
Respondent Nos. 1/B, 1/C, 2A and 2/B.
WITH
CIVIL APPLICATION NO. 3143 OF 2005
IN
SECOND APPEAL NO. 426 OF 2005
Bhivsen S/o Yadavrao Bhatane,
Died L.Rs.
1. Bhivrabai w/o Bhivsan Bhatane,
and others .. Applicants
Versus
1. Ram s/o Sambha Murkute,
Since deceased through his L.Rs.
1A Wanchabai w/o Ram Murkute,
and others .. Respondents
Shri D. Y. Bhadekar and Shri R. R. Suryawanshi, Advocates for
the Applicants.
Shri B. R. Kedar, Advocate h/f Shri S. B. Madde, Advocate for the
Respondent Nos. 1/B, 1/C, 2A and 2/B.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR JUDGMENT ON : 13.10.2025
JUDGMENT PRONOUNCED ON : 06.11.2025
4 sa 426.05
JUDGMENT :
. Heard both sides finally.
2. Appellant who is original plaintiff is challenging judgment
and decree dated 31.07.2003 passed by the Trial Court in R.C.S.
No. 134 of 2002, which is further confirmed by the lower
Appellate Court in R.C.A. No. 127 of 2003 vide judgment dated
28.04.2004. He is non suited for relief of declaration and
injunction. Parties are referred to by their original status in the
suit.
3. Second appeal was admitted on following substantial
questions of law vide order dated 08.09.2005.
i) Whether the Courts below have committed serious error of
law in not recording the findings with regard to the claim
of the plaintiff that he had become owner of the property by
virtue of sale deed dated 05.03.1994 and a correction deed
dated 27.06.1994?
4. The controversy pertains to land gut No. 94 admeasuring
1H 34R which was originally belonging to the respondents. The
total area of land was 3H 10R. Out of that respondent No. 1 sold
1H 32R to the plaintiff vide registered sale deed dated
05.03.1994. The parties sought correction to the Eastern side
boundary of suit property. A registered correction deed was
executed on 27.06.1994. It is contended by the plaintiff that the
5 sa 426.05
defendants obstructed his possession and he was required to file
R.C.S. No. 134 of 2002 for declaration and injunction.
5. The defendants contested the suit by taking a plea that it
was not out and out sale, but a money lending transaction. The
sale deed was nominal one and executed towards security. The
defendants claimed to be in possession of the suit land. It is
further contended that the defendant No. 1 partitioned the suit
land by allotting the shares to the defendant Nos. 2 and 3. The
mutation entry No. 128 was recorded. It is disclosed that the
successor in title of the defendant had preferred R.C.S. No. 194 of
2021 for declaration and injunction in respect of self same subject
matter and sale transaction, which is pending.
6. Both parties led oral evidence. The original sale deed
dated 05.03.1994 and correction deed dated 27.06.1994 were not
produced on record. However, with the list of document at
Exhibit 04, plaintiff produced certified copies of both the
documents along with the plaint.
7. Trial Court recorded that plaintiff failed to produce
original documents on record. The possession was all the while
held to be with the defendants. The plaintiff did not disclose four
boundaries of the suit land. Hence the theory of execution of
nominal sale deed towards security was accepted and the suit
was dismissed. Appellate Court, recorded that no court fees for
the relief of declaration was paid, four boundaries were not
6 sa 426.05
mentioned and the possession all the while was with the
defendants, hence confirmed the decision of the trial Court.
However, the Appellate Court held that the plaintiff has made
out a prima facie case for his title over the suit land.
8. Learned counsel for the appellant submits that both Courts
below committed grave error of jurisdiction in dismissing the suit
because the certified copies of the relevant document were on
record before the Trial Court and the admissible evidence has
been discarded. It is further contended that in Civil Application
No. 3141 of 2005 filed under Order XLI Rule 27 of the Code of
Civil Procedure (for the sake of brevity and convenience
hereinafter referred as to the "C.P.C.") original documents are
produced on record.
9. It is further submitted that the lower Appellate Court has
rightly observed that there are no material particulars to
corroborate the plea of money lending transaction and security.
It is further submitted that the respondents themselves have
filed R.C.S. No. 194 of 2021 which fortifies the execution of the
sale deed in question. It is further submitted that present suit
can be remanded to be tried along with the above suit. It is
further submitted that trial court committed perversity in
holding that the sale deed was nominal and it was executed
towards security.
10. Mr. Kedar, learned counsel for the respondents repels the
7 sa 426.05
submissions and supports the concurrent findings of facts. It is
submitted that trial Court has rightly arrived at a conclusion
that possession was all the while with the defendants and it was
not out and out sale. It is further submitted that suit land was
mortgaged with District Central Cooperative Bank. The
categorical findings are recorded by both the Courts below which
cannot be disputed. It is further submitted that the original sale
deeds cannot be taken into account because those were not
submitted along with plaint. On the basis of reply, application
for additional evidence is sought to be rejected. Lastly it is
submitted that plaintiff failed to lead evidence and prove the
contents and the execution of the sale deed as per Sec. 61, 62, 63
and 64 of the Evidence Act.
11. I have considered rival submissions of the parties. I have
gone through the original record with the assistance both the
learned counsels. The plaintiff has filed Civil Application No.
3143 of 2005 for production of original sale deed as well as
correction deed which are registered documents. The application
for additional evidence was directed to be decided at the time of
final hearing of the second appeal. The application is opposed by
affidavit in reply filed by the respondents.
12. The record reveals that list of document at Exhibit 04 was
filed along with the plaint and in the said list certified copies of
sale deed dated 05.03.1994 as well as correction deed dated
27.06.1994 were produced before the trial Court. The defendant
8 sa 426.05
No. 1 - Madhav is the attesting witness who has admitted
execution of sale deed and its registration. No plea is taken by
the defendants that the sale deed was got executed fraudulently.
Their plea all the while is that it was a nominal transaction
executed towards the security for the money lending. It has been
brought on record that R.C.S. No. 194 of 2021 was filed by the
heirs of the defendants in respect of the self same suit land as
well as the sale deed for the relief of declaration and injunction.
13. A certified copy of plaint of R.C.S. No. 1994 of 2021 shows
that the execution of the sale deed has been categorically stated
in the plaint. The revenue record and the proceedings before the
revenue court have also been referred in the plaint. The
plaintiffs therein are contended to be in possession of the suit
land. The sale deed has been challenged on the ground that it
was nominal and illegal. In this situation the objection raised by
the learned counsel Mr. B. R. Kedar that original sale deed was
not produced on record and the contents thereof have not been
proved looses the significance. The defendants and their heirs
have admitted the execution as well as contents of the sale deed.
Therefore further independent proof of the document is not
required.
14. The defendant No. 1 is the attesting witness of the sale
deed. The certified copies were already on record. Both the
Courts below have overlooked Sec. 73 and 77 of the Evidence Act.
Learned counsel Mr. Bhadekar has rightly placed on record the
9 sa 426.05
judgment of the Supreme Court in the matter of Appaiya Vs.
Andimuth @ Thangapandi and others reported in 2023 AIR (SC) 4810
laying down that certified copy is admissible in the evidence. I
have gone through para No. 22 and 30 of the judgment. Under
these circumstances, I find that both the Courts below ought to
have held that the plaintiff is the owner of the suit land.
15. Under peculiar facts and circumstances of the case when
already certified copies of relevant documents are on record and
those are admissible in evidence, there is no need to decide the
application of additional evidence independently. The said
application contains reasons showing that application was made
on 28.07.2004 for the original documents and thereafter those
were issued to the plaintiff. At the cost of repetition I have to
observe that both Courts below ignored legally admissible
evidence on record. The certified copy confirms with the original.
For the reasons stated above I find that Civil Application No.
3143 of 2005 is disposed of.
16. The plaintiff is entitled to have declaration that he has
acquired title vide sale deed dated 05.03.1994. Though court fees
for the relief of declaration has not been paid, the learned
counsel for the appellants has shown the readiness of his clients
to pay the court fees in that regard. The substantial question of
law has to be answered in favour of the appellants.
17. Both Courts below observed that four boundaries of the
10 sa 426.05
suit land have not been mentioned in the plaint. The sale deed
discloses the four boundaries and no grievance is made in that
regard by heirs of the defendants in R.C.S. No. 194 of 2021. The
parties have understood and identified the subject matter. I do
not find that any prejudice is caused to the defendants by not
disclosing the four boundaries. The plaintiff cannot be non
suited for not describing the four boundaries.
18. The defendants have also raised objection regarding non
joinder of necessary parties. It is disclosed that the suit land was
mortgaged by the defendants. The District Central Cooperative
Bank, is contended to be necessary party. The defendants have
not provided material particulars regarding the mortgage. No
relief as such is prayed against the bank. The plaintiff is not
claiming possession. The objection for non joinder of necessary
party is not sustainable.
19. The Trial Court held that the transaction in question
between the parties is not out and out sell, but it was money
lending transaction. As the possession has been retained by the
defendants, trial court is prompted to draw a conclusion that its
a mortgage. However, the lower Appellate Court did not concur
with the finding. The defendants failed to provide material
particulars of the money lending and, therefore, the plea was not
accepted. I have independently assessed the material on record
in this regard. For the following reasons I am of the considered
view that its not a money lending transaction.
11 sa 426.05
(i) The recitals of sale deed dated 05.03.1994 and correction
deed do not spell out any mortgage or money lending
transaction.
(ii) There was no need to execute and register the correction
deed, had the transaction been a nominal sale only.
(iii) The defendants have not led evidence regarding hand loan
taken from the plaintiff and its repayment.
20. Learned counsel for the respondents sought reliance on the
judgment of the Coordinate Bench of this Court in the matter of
Shankarlal Ganulal Khandelwal since deceased through L.Rs. Rameshchandra
Shankarlal Khandelwal Vs. Balmukund Surajmal Bharuka since deceased
through L.Rs. Anil Balmukund Bharuka and others reported in 1999(2)
Mh.L.J. 569. I have gone through para Nos. 4, 7, 9 and 13. In that
case sale deed was produced on record and it was exhibited. The
facts are distinguishable. The judgment will not help the
respondents. Further reliance is placed on the judgment of the
Supreme Court in the matter of Union of India Vs. Abrahim Uddin and
another reported in (2012) 8 SCC 148. The parameters for invoking
jurisdiction of Order XLI Rule 27 of the C. P. C. have been laid
down by the Apex Court, which cannot be disputed. However, I
have already observed that in the case at hand the application
preferred by the plaintiff U/O XLI Rule 27 of the C. P. C. has
become redundant because already the certified copies of the
relevant documents are placed on record and the probative value
of those documents was not taken into account by the courts
below, which is held to be an error of jurisdiction.
12 sa 426.05
21. In the present suit no relief of possession has been claimed
by the plaintiff. The material on record indicates that the
defendants are in possession. It would be open for the plaintiff to
take recourse of law to secure the possession. Both the Courts
below have committed perversity in dismissing the suit. I,
therefore, pass following order.
ORDER
A. Second appeal is allowed partly.
B. The judgment and decree dated 31.07.2003 passed in
R.C.S. No. 134 of 2002 by Civil Judge Junior Division,
Chakur as well as judgment and decree dated 28.04.2004
in R.C.A. No. 127 of 2003 passed by Adhoc Additional
District Judge, Latur are quashed and set aside.
C. R.C.S. No. 134 of 2002 shall stand decreed only to the
extent of declaration that the plaintiff is owner of the suit
land.
D. There shall be no order as to costs.
[ SHAILESH P. BRAHME J. ]
bsb/Oct. 25
