Nirbhay Singh vs Phulla & Anr.
2023 Latest Caselaw 1393 MP

                           1



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                     BEFORE
  HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
           ON THE 24th OF JANUARY, 2023
              SECOND APPEAL No. 997 of 1999

BETWEEN:-

NIRBHAY SINGH, SON OF MAN SINGH, AGED
ABOUT 69 YEARS, CULTIVATOR, RESIDENT OF
MOHLI PITHORIA, P.S. BANDRI, TAHSIL KHURAI,
DISTRICT SAGAR (MADHYA PRADESH)
                                                .....APPELLANT
(BY SHRI A.USMANI - ADVOCATE)

AND

   1. PHULLA SON OF GANESH PRAJAPATI,
      AGED ABOUT 65 YEARS, CULTIVATOR,
      RESIDENT OF GRAM SEWAN, TAHSIL
      KHURAI, DISTRICT SAGAR (MADHYA
      PRADESH)
   2. THE STATE OF MADHYA PRADESH
      THROUGH THE COLLECTOR, SAGAR.
                                              .....RESPONDENTS
(NONE FOR THE RESPONDENTS)


Reserved on   :     16.1.2023.
Pronounced on :     24.1.2023.

      This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, the court pronounced the
following:
                         JUDGMENT

1. This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 14-7-1999 passed by 2nd Additional District Judge, Camp at Khurai, Distt. Sagar in Civil Appeal No. 114A/1998 arising out of Judgment and decree dated 6- 9-1997 passed by 1st Civil Judge Class II, Khurai, Distt. Sagar in Civil Suit No. 147A/1994.

2. The present appeal was admitted on the following Substantial Question of Law :

"Whether the finding arrived at by the courts below that the said transaction was not out right sale and that the sale deed (Ex. P.2) was executed by way of security is perverse as it is based on misreading and misinterpreting of evidence on record?"

3. The facts necessary for disposal of present appeal in short are that the Plaintiff/respondent no.1 filed a suit for declaration of sale deed dated 31-3-1981 as null and void as well as for mesne profits. His case was that the appellant/defendant is a money lender and disputed sale deed was executed by way of security of loan of Rs. 3000/- and it was agreed upon that whenever, the plaintiff would repay the loan amount as well as the registration charges, a deed of reconveyance shall be executed and possession of the land shall also be returned. It was further pleaded that although the impugned sale deed was executed for a consideration amount of Rs. 3000/- but its real market value was Rs. 6,000/-. An agreement was also executed by the Appellant/defendant no. 1 to the effect that on repayment of loan amount, a deed of reconveyance shall be executed in favour of

the plaintiff/respondent no.1. However, now the Appellant is avoiding the execution of deed of reconveyance and accordingly it was prayed that the impugned sale deed dated 31-3-1981 be declared as null and void as well as for execution of deed of reconveyance, and for mesne profits till the possession is delivered.

4. The Appellant filed his written statement and denied that he is a money lender. He denied that the plaintiff had taken a loan of Rs. 3000/-. He denied that the impugned sale deed was executed by way of security of loan. There was no loan transaction between the parties. He denied that the crop received by the Appellant was to be treated as an interest. He claimed that the impugned sale deed was out and out sale. After the execution of sale deed, the Appellant is in possession of the same as an owner and the plaintiff/respondent no.1 has no right or title over the said land. However, the Appellant admitted that he had extended a benefit to the respondent/plaintiff that in case if he repays Rs. 3000/- including the registration charges, then he would execute a deed of reconveyance. The execution of agreement for execution of deed of reconveyance was also admitted by the Appellant/defendant no.1. It was further pleaded that the plaintiff should have got the sale deed executed within a period of 3 years, but since, the suit has been filed after 12 years, therefore, the Appellant has perfected his title by way of adverse possession. Thus, it was claimed that the suit is barred by time.

5. The Trial Court by judgment and decree dated 6-9-1997, decreed the suit.

6. Being aggrieved by the said judgment and decree, the Appellant preferred an appeal which too was dismissed by the impugned Judgment and Decree.

7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the Counsel for the Appellant that the Courts below failed to see that the sale deed, Ex. P.2 was an out and out sale and was not executed by way of security of loan and no deed of reconveyance was required to be executed.

8. Heard the learned Counsel for the Appellant.

9. The Appellant in para 2 of his written statement has specifically admitted that he had extended the benefit to the respondent/plaintiff that in case if he repays Rs. 3000/- including the registration charges, then he would execute a deed of reconveyance. The execution of agreement for execution of deed of reconveyance, Ex. P.1 was also admitted by the Appellant/defendant no.1.

10. Once the agreement for execution of deed of reconveyance, Ex. P.1 was admitted by the Appellant and had also admitted that he had agreed to execute a deed of reconveyance on repayment of Rs. 3,000/-, then it is clear that sale deed, Ex. P.2 was not out and out sale but it was a deed executed by way of security of loan.

11. Further more, the Supreme Court in the case of Placido Francisco Pinto (D) Thr. L.Rs. Vs. Jose Francisco Pinto decided on 30-9-2021 in C.A. No. 1491 of 2007 has held as under :

27. A perusal of the above judgment would show that the oral evidence of a written agreement is excluded except when it is sought to be alleged the document as a sham transaction.

12. Once, the Appellant/defendant himself has admitted that he had agreed to execute a deed of reconveyance on repayment of Rs. 3,000/-, this Court is of the considered opinion, that Substantial Question of Law framed in the present Appeal is to be answered in Negative.

13. Ex Consequenti, the judgment and decree dated 14-7-1999 passed by 2nd Additional District Judge, Camp at Khurai, Distt. Sagar in Civil Appeal No. 114A/1998 and Judgment and decree dated 6-9-1997 passed by 1st Civil Judge Class II, Khurai, Distt. Sagar in Civil Suit No. 147A/1994 are hereby affirmed.

14. The Appeal fails and is hereby Dismissed.

(GURPAL SINGH AHLUWALIA) JUDGE

HEMANT SARAF 2023.01.27 16:27:19 +05'30' HS