Chattisgarh High Court

Ratanmani vs Omprakash And Ors on 28 June, 2022

                                   1

                                                                     AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                          F.A. No. 170 of 2011
                       Reserved on 16.06.2022
                       Pronounced on 28.06.2022


    Ratanmani S/o Maniklal, aged about 48 years caste Mali,
     Occupation Agriculturist R/o Ratanpali, P.S. Sariya, Tahsil
     Sarangarh, District Raigarh, C.G.
                                                            ---- Appellant
                                Versus
   1. Omprakash S/o Shivnarayan Agrawal, aged about 48 years, R/o
      Village Sariya, Tahsil Sarangarh, District Raigarh C.G. (dead)
      through legal representatives
      (a) Natwar S/o Omprakash Agrawal, aged about 24 years, R/o
      Village Sariya Tahsil Sarangarh, District Raigarh C.G.
      (b) Rajni, D/o Omprakash Agrawal, aged about 28 years R/o village
      Sambalpur, Tahsil and district Sambalpur (Orissa)
      (c) Renu, D/o Omprakash Agrawal aged about 30 years R/o Village
      Sariya, Tahsil Sarangarh, District Raigarh (C.G.)
      (d) Shakuntala, W/o Omprakash Agrawal, aged about 48 years R/o
      Sariya, Tahsil Sarangarh, District Raigarh (C.G.)
   2. Pandavo S/o Panika aged 55 years caste Kotla, Occupation
      Agriculturist R/o village Panchdhar Tahsil Sarangarh, District
      Raigarh (C.G.)
   3. State of Chhattisgarh, through the Collector, Raigarh (C.G.)
                                                        ---- Respondents

Ms. Sharmila Singhai, learned senior counsel appears along with Ms. Archie Tripathi, counsel for the Appellant.

None for Respondents No.1(a) to 1(d), though served. Smt. Hamida Siddiqui, counsel appears along with Ms. Karuna Masih, counsel for Respondent No.2.

Shri Sanjeev Kumar Agrawal and Shri C.B. Kesharwani, Panel Lawyers for the State/Respondent No.3.

F.A. No. 171 of 2011

1. Ratanmani S/o Maniklal age 48 years

2. Shriram S/o Maniklal age 32 years

3. Rajaram S/o Maniklal age 35 years

4. Chandrashekhar S/o Maniklal age 42 years

5. Balmukund S/o Maniklal age 39 years

All by Caste Mali, Occupation Agriculturist, R/o Ratanpali, P.S. Sariya, Tahsil Sarangarh, District Raigarh (C.G.)

---- Appellants Versus

1. Pandavo S/o Panika age 55 years, Caste Kotla Occupation Agriculturist, R/o village Panchdhar, Tahsil Sarangarh, District Raigarh C.G.

2. Omprakash S/o Shivnarayan Agrawal age 48 years R/o Village Sariya, Tehsil Sarangarh, District Raigarh (C.G.) (dead) through legal representatives 2(a) Natwar S/o Omprakash Agrawal, aged about 24 years, R/o Village Sariya Tahsil Sarangarh, District Raigarh C.G.

(b) Rajni, D/o Omprakash Agrawal, aged about 28 years R/o village Sambalpur, Tahsil and district Sambalpur (Orissa)

(d) Shakuntala, W/o Omprakash Agrawal, aged about 48 years R/o Sariya, Tahsil Sarangarh, District Raigarh (C.G.)

3. State of Chhattisgarh, through the Collector, Raigarh (C.G.)

---- Respondents

Ms. Sharmila Singhai, learned senior counsel appears along with Ms. Archie Tripathi, counsel for the Appellants.

Smt. Hamida Siddiqui, counsel appears along with Ms. Karuna Masih, counsel for Respondent No.1.

None for Respondents No.2(a) to 2(d), though served. Shri Sanjeev Kumar Agrawal and Shri C.B. Kesharwani, Panel Lawyers for the State/Respondent No.3.

Single Bench:Hon'ble Shri Sanjay S. Agrawal, J CAV Judgment / Order

1. Both these appeals have been preferred against the common

judgment and decree dated 13.05.2011 passed in Civil Suit No.20-A/2006

and Civil Suit No.21-A/2006 by the Additional District Judge, Sarangarh,

District Raigarh, they are being disposed of by this common order.

2. Briefly stated the facts of the case are that the Plaintiff-Pandavo

instituted a suit claiming declaration of title and injunction by submitting

inter alia that by virtue of a registered deed of sale dated 12.03.1999, he

purchased the land in question bearing Khasra No.100/2 admeasuring

0.809 hectare (2 acres) situated at village Panchdhaar, Tehsil Sarangarh,

District Raigarh from defendant No.1-Omprakash (since deceased now

represented by his legal representatives, namely, Natwar and others) for a

consideration of Rs.77,000/-. It is pleaded in the plaint that his said vendor

(Omprakash) had purchased the suit property from defendant No.2-

Ratanmani, which was part of Khasra No. 100 admeasuring 1.481 hectare

(3.63 acres) under the registered deed of sale dated 06.04.1995 and

obtained the revenue papers mutated in his name on 22.05.1996, while his

(Pandavo) name was recorded vide Namantaran Panji Number 11 dated

08.08.1999 based upon the alleged sale deed dated 12.03.1999.

3. Further contention of him is that defendants No.3 to 6, who are real

brothers of said Ratanmani, have questioned the alleged mutations as

made on 22.05.1996 and 08.08.1999 in appeal before the Sub Divisional

Officer (Revenue), Sarangarh under Section 44 of the Chhattisgarh Land

Revenue Code, 1959 without their knowledge and succeeded to get their

names recorded in the revenue papers vide order dated 26.07.2004 as

passed by the said authority in Revenue Appeal No.97-A-6/2002-03 and

started interfering in his peaceful possession which compelled him for

institution of the suit in the instant nature registered as Civil Suit No.20-

A/06 (Pandavo vs. Omprakash and others).

4. Defendant No.2-Ratanmani (vendor of Omprakash), while denying

the execution of the alleged registered deed of sale dated 06.04.1995,

contested the claim on the ground that he owned the joint family property

bearing Khasra No.100 admeasuring 1.481 hectare (3.63 acres) and, part

of it, the suit land, was mortgaged by him with defendant No.1-Omprakash

on 06.04.1995 and has executed the alleged document for the security of

the loan amount of Rs.50,000/- which he borrowed from him when he was

in need of money in 1995. It is pleaded by him in his written statement that

after a year, he arranged the amount of Rs.50,000/- after selling his

sugarcane and returned the alleged loan amount to him (Omprakash), who

had assured him at that time to return the alleged document as it was

placed by him somewhere else. Further contention of him is that since the

alleged mutations as done in their (plaintiff-Pandavo, defendant No.1-

Omprakash) favour were illegal, and therefore, it was duly set aside by the

Sub Divisional Officer (Revenue), Sarangarh vide its order dated

26.07.2004 in said Revenue Appeal No.97-A-6/2002-03.

5. Defendants No.3 to 6, who are real brothers of defendant No.2-

Ratanmani, while reiterating the aforesaid contention of defendant No.2,

submitted their counter claim alleging inter alia that the alleged registered

deed of sale dated 06.04.1995 was executed in favour of defendant No.1-

Omprakash by their said brother (Ratanmani) for the security of the loan

amount, and therefore, subsequent sale, as executed on 12.03.1999 by

said defendant-Omprakash in favour of plaintiff-Pandavo would not confer

any right, title or interest upon him and both the sales, therefore, be

declared as null and void as it was executed without obtaining their prior

consent and seeking further relief of injunction restraining the plaintiff-

Pandavo and defendant No.1-Omprakash from interfering in their peaceful

possession.

6. Plaintiff-Pandavo denied the said counter claim as made by

defendants No.3 to 6 by submitting his reply to it.

7. In Civil Suit No.21-A/06 "Ratanmani vs. Omprakash and others",

said Ratanmani, the plaintiff, while reiterating the averments as made by

him in his written statement filed in Civil Suit No.20-A/06 claimed for

declaration of title, possession and injunction by submitting inter alia that

the property in question was a joint family property and was mortgaged

with defendant No.1-Omprakash for the security of the loan amount of

Rs.50,000/-, which he borrowed from him.

8. The aforesaid claim of Ratanmani was contested by defendant

No.1-Omprakash denying specifically that the alleged registered deed of

sale dated 06.04.1995 was executed for the security of the alleged loan

amount as alleged by him.

9. Vide order dated 27.06.2007, Civil Suit No.20-A/06 was directed to

be placed along with aforesaid Civil Suit No.21-A/06.

10. After considering the evidence led by the parties, it was held by the

trial Court by its impugned common judgment and decree dated

13.05.2011 that the alleged registered deed of sale dated 06.04.1995

(Ex.P.-7) was duly executed by said Ratanmani in favour of Omprakash

after the mutual oral partition effected amongst said Ratanmani and his

brothers and was not for the security of the alleged loan amount, as

alleged by said Ratanmani. It held further that said Omprakash after

acquiring his interest over the suit property obtained the revenue papers

mutated in his name on 22.05.1996 and in turn, sold it to said Pandavo

under the registered deed of sale dated 12.03.1999 (Ex.P.-8) and his name

was accordingly recorded in revenue papers on 08.08.1999. In

consequence, while decreeing the claim of Pandavo, dismissed the claim

of said Ratanmani along with the counter claim of his brothers.

11. Being aggrieved with the dismissal of their claim (in Civil Suit No.21-

A/06) and counter claim (in Civil Suit No.20-A/06), said Ratanmani and his

brothers, namely, Shriram, Rajaram, Chandrashekhar and Balmukund

have preferred these appeals.

12. According to Ms. Sharmila Singhai, learned counsel appearing for

the appellants, the findings of the Court below upholding the execution of

the alleged registered deed of sales dated 06.04.1995 (Ex.P.-7) and

12.03.1999 (Ex.P-8) are contrary to law. While inviting attention to the

statement of Arjun Pradhan (DW6) and Sukdev (DW7), contended that the

alleged loan amount of Rs.50,000/- was paid to defendant-Omprakash in

their presence, as such, the Court below ought to have held that it was

executed for the security of the loan amount. Further contention of her is

that since the property in question was the joint family property, therefore,

in absence of any partition being done, no sale as such with regard to the

specific partition of it could have been made. Having failed to consider the

said fact in its proper manner, the trial Court has committed an illegality in

upholding both the alleged sales (Ex.P.-7 and Ex.P.-8).

13. On the other hand, learned counsel appearing for the Respondents

has supported the impugned judgment and decree as passed by the trial

Court.

14. I have heard learned counsel for the parties and perused the entire

record carefully.

15. The questions which arise for the determination in these appeals

are:-

"1. Whether mutual partition amongst Ratanmani and his brothers prior to alienation of the property in question has been arrived at or not?

2. Whether the alleged registered deed of sale dated 06.04.1995 (Ex.P.-7), said to have been executed by Ratanmani in favour of defendant Omprakash, was a deed of mortgage and/or was

executed for security of loan amount of Rs.50,000/-?"

16. Reference to question (1):-

According to Ratanmani and his brothers, the property in

question was their joint family property. It, however, appears

from a bare perusal of the memo of appeal (Ex.P.-3)

preferred by said Ratanmani and his real brothers Shriram,

Rajaram, Chandrashekhar and Balmukund before the Sub

Divisional Officer (Revenue), Sarangarh under Section 44 of

the Chhattisgarh Land Revenue Court, 1959 registered as

Revenue Appeal No.97-A-6/2002-03 would reveal the fact

that mutual oral partition has already been effected amongst

them in 1993 and since then, they are cultivating in their

respective shares. Pertinently to be observed here further

that the alleged factum of mutual partition has duly been

admitted by Chandrashekhar (DW2), the real brother of said

Ratanmani in para 9 of his testimony, although, it was

recorded in their joint names. The said portion of his

testimony is relevant for the purpose which reads as under:-

"9. ..............यह कहनन सहह हह कक अपहल कक जनपन (एस- डह- ओ-½ प० पह०-३ मम हम ललगलम नक कववनकदत जमहन कन आपसह बटवनरन हलनन ललखन थन। गवनह सवतत कहतन हह कक हमनरक कपतनजह नक हम ललगग कक बहच जमहन कन ममहलखक कवभनजन कर कदयन थन, खनतन समममललत थन ---------------------------------

17. Balmukund (DW4), another brother of said Ratanmani, although

denied the contents as made at para 2 of the alleged memo of appeal

(Ex.P.-3), has, however, admitted specifically the factum of partition as

revealed from paragraphs 9 & 11 of his testimony, which read as under:-

9......यह कहनन सहह हह कक इस आपसह बटवनरक मम पनप भभूकम सक हह ए आय कल सवतत कक ललए खचर करतक हह। यह कहनन सहह हह कक हम सभह भनई 10 सनल सक भह अलधिक समय सक अलग अलग खननन पहनन रहनन बसनन कर रहक हह।..........

11. मम रतनमणह, शहरनम, रनजनरनम, चन्द्रशकखर आकद ललग घर मम हह आपस मम बहठकर यह तय कर ललए थक कक कमन कमन ककतनन ककतनन जमहन कमनयकगन। यह बनत कब तय कक गयह थह उसकन कदन महहनन नहह बतन सकतन। मकरक तथन मकरक भनईयग कक बहच कककष कनयर अलग अलग करनक कक बनतचहत कक समय कनमशचत करनक कक समय कलई अन्य बनहरह व्यकक उपमसथत नहह थन। यह सहह हह कक मम तथन मकरक भनईयग नक आपस मम तय ककयक अननुसनर कककष कनयर आज तक करतक आ रहक हह। यह सहह हह कक हमनरक कपतन मनकनकलनल कक मकत्यनु कक बनद हम सभह भनईयग नक अलग अलग कनसतकनरह करनक कक समबन्धि मम तय ककयन थन। यह सहह हह कक मकरक कपतन कक मकत्यनु हह ए 15 वषर सक अलधिक कन समय हल गयन हह। कपतन कक जहवनकनल मम मम और मकरक सभह भनई सनथ सनथ रहतक थक तथन कपतन कक मकत्यनु कक बनद मम और मकरक सभह भनई अलग अलग रहतक आ रहक हम। यह सहह हह कक मम तथन मकरक सभह भनई कन चभूल्हन चमकन खननन पहनन अलग अलग हह, सवतत कहन कक हम सभह भनईयग कन आआ गन एक मम हह तथन कमरक अलग अलग बनबांट ललए हम। यह सहह हह कक मम और मकरक भनई अपनक अपनक कककष कक आय कल अपनक अपनक पनस रखतक हम और उसह सक अपनन जहवन यनपन करतक हम।

18. In view of the aforesaid admissions, it is evident that prior to

execution of the alleged sale (Ex.P.-7) by Ratanmani in favour of

defendant Omprakash the mutual oral partition has already been effected

amongst them. The question is, thus, answered accordingly by holding that

the alleged oral partition amongst them has already been done and only

thereafter, the alleged sale (Ex.P.-7) was executed.

19. Reference to question (2):-

From perusal of the averments made in the plaint instituted

by said Ratanmani in C.S. No.21-A/06 "Ratanmani vs.

Omprakash and others", it appears that the execution of the

alleged registered deed of sale dated 06.04.1995 (Ex.P.-7)

has been denied by him on the ground that it was a mortgage

deed and was executed only for security of the loan amount

of Rs.50,000/- which he borrowed from said Omprakash. This

question, therefore, needs to be answered in view of the

requirement of Section 58(c) of the Transfer of Property Act,

1882 (hereinafter referred to as the 'Act, 1882'), which reads

as under:-

"58. "Mortgage", "mortgagor, "mortgagee", "mortgage money" and "mortgage deed" defined.

-- (a)-(b)*

(c) Mortgage by conditional sale.--Where, the mortgagor ostensibly sells the mortgaged property--

on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale."

20. It, thus, appears from a bare perusal of the aforesaid provision that

the effect of the transaction as to whether it is a mortgage or not could be

examined only if any of the three conditions prescribed therein is contained

in the document itself, else the nature of it would be out of the scope of the

said provision. It is, thus, evident that a recital of any of the aforesaid three

conditions in the document itself is a sine qua non for its examination. It is

to be noted at this juncture, the principles laid down by the Supreme Court

in the matter of Chunchun Jha vs. Ebadat Ali and another reported in

AIR 1954 SC 345, wherein it has been held while dealing with such an

issue at para 6 as under:

"6. .........as in every other cases where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended."

21. In order to ascertain the true transaction of the alleged registered

deed of sale dated 06.04.1995, marked as Ex.P.-7, purported to have been

executed by said Ratanmani in favour of Defendant No.1-Omprakash, the

recitals contained therein are to be seen in the light of the provisions

prescribed under Section 58(c) of the Act, 1882, vis-a-vis, the principles

laid down in the above mentioned decision of the Supreme Court.

22. A bare perusal of the recitals contained in the alleged transaction

(Ex.P.-7) would, however, reveal the fact that since the vendor of it was in

need of money, and therefore, it became necessary for him to alienate the

property in question to said Omprakash and, accordingly it was sold for a

consideration of Rs.50,000/- while putting him in possession thereof. The

ingredients provided under Section 58(c) of the Act, 1882, are, thus,