The trial Court held that after execution of sale-deed in 1972, the plaintiff never exercised right under the sale-deed for five years. It is to be noted that the suit property is open plot and the defendant after five years started activity of digging the pits for making construction. There was nothing wrong if the defendant wanted to start activity on the suit plot after five years of its sale-deed, since there was no structure standing on the plot. On the contrary, the record shows that the defendant got a plan sanctioned from the Municipal Council after five years of the sale-deed for making construction which is at Exh.68. Merely because the defendant started his activity of getting plan sanctioned for constructing a house or making some construction on a open plot, one cannot jump to a conclusion that the sale-deed was nominal. On the contrary, the appellant/plaintiff did not say a word as to within what period he was to repay the entire amount and get back the sale-deed executed in his favour. If the sale transaction was really nominal, what steps did he take in those five years to assert accordingly. What amount did he repay during those five years. Appellant/plaintiff kept all this a 'mystery'. To repeat, this is all the more so because the appellant/plaintiff never asserted during this period of five years that the sale-deed was nominal particularly because he had transferred the property by a registered sale-deed.
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Bombay High Court
Shankarlal Ganulal Khandelwal Vs Balmukund
Surajmal Bharuka
Second Appeal No.136/1983 on 20 April, 2011
Bench: A. B. Chaudhari
1. This appeal is directed against the judgment and decree dated 27.2.1983, passed by the District Judge, Buldana in Regular Civil Appeal No.271/1979 by which the first appellate Court reversed the judgment and decree dated 10.12.1979 passed by the Civil Judge, Junior Division, Malkapur in Regular Civil Suit No.50/1977.
FACTS :
2. Appellant - Shankarlal filed a civil suit bearing Regular Civil Suit No.50/1977 in the Court of Civil Judge, Junior Division, Malkapur contending therein that he executed a nominal sale-deed on 23.11.1972 of plot No.14 admeasuring 2,000 sq. ft.
owned by him in favour of the respondent/defendant for an amount of Rs.10,000/- because he badly needed the money for his business and treatment. The respondent had given a promise that the respondent/defendant would cancel the nominal sale-deed and re-execute the sale in favour of appellant/plaintiff upon repayment of Rs.10,000/- with 6% interest. He then stated that on 7.3.1977 however the respondent tried to take possession by starting digging operation on the suit plot. But the appellant obstructed him on the ground that the said sale-deed was nominal and not to be acted upon. He filed the suit for declaration that the said sale-deed be declared as 'simple mortgage' and the appellant be allowed to have a redemption thereof.
Interim injunction operated during the pendency of the suit and further proceedings.
3. In the written statement that was filed by the respondent he claimed that the sale in question was an out and out sale for Rs.10,000/- and he had also started construction.
4. The trial Court in all framed five issues and held that the appellant had proved that the said sale-deed was in the nature of simple mortgage and was thus liable to be cancelled. The Court also held that the possession of the suit plot was not parted at the time of execution of sale-deed and the appellant was entitled to redemption of the said simple mortgage.
5. During the trial, the plaintiff examined himself i.e. P.W. 1 Shankarlal, P.W.2 Ramdas and P.W.3 Gulabchand, the two attesting witnesses, P.W.4 Ghanashyamdas, a broker and P.W.5 Damodhardas the earlier vendor of the appellant. While respondent examined himself and D.W. 1 Balmukund. Finally, the trial Court decreed the suit as aforesaid.
6. The respondent-defendant filed appeal before the District Judge, Buldhana who re-appreciated the evidence documentary as well as oral and came to a conclusion that the sale transaction was not a transaction of simple mortgage nor the same could be cancelled. The transaction was a pure and simple sale transaction. The appellant-plaintiff failed to prove that the same was simple mortgage and there were no circumstances showing that the said sale transaction was vitiated for any reason whatsoever. The District Judge, Buldhana thus allowed the appeal and set aside the decree passed by the trial Court.
7. The plaintiff/appellant filed this second appeal in this Court which was heard and finally decided by this Court on 16.10.1998 by a judgment.
This Court allowed the second appeal and set aside the said judgment of the District Judge restoring the decree passed by the trial Court in the suit.
8. This Court held that a party could lead oral evidence to assert that the intention of the parties was to enter into a different transaction than the one recorded in the document. That the party could lead oral evidence to show that the document executed was never intended to operate as an agreement of what is recorded but some other agreement altogether, not recorded in the document, was entered into between the parties. This Court thus held relying on the judgment in the case of Smt. Gangabai w/o Rambilas Gilda...Versus...Smt. Chhabubai w/o Pukharajji Gandhi, reported in 1982 (1) Supreme Court Cases 4 that no bar under Sections 91 and 92 of the Indian Evidence Act would be obstructive. On facts and evidence, this Court further held that the judgment of the appellate Court was faulty.
9. In the Civil Appeal No.4867/1999, the Hon'le Apex Court reversed the said judgment dated 16.10.1998 recorded by this Court, which was impugned in the said civil appeal. The Apex Court held that this Court entered into the realm of re-appreciation of evidence in the second appeal without framing question of law as to the perversity of the findings, if any, recoded by the first appellate Court on facts and evidence.
10. The Apex Court held that in second appeal the High Court can upset the findings of fact only if it is proved to the satisfaction of the High Court that the findings of fact recorded by the first appellate Court were perverse inasmuch as the same were based on no evidence or on misreading of evidence or that the view taken by the first appellate Court was so perverse as no reasonable person of ordinary prudence could have taken that view. The Apex Court further held that the High Court did not frame any question if it were to interfere on the facts and the evidence. Finally, the Hon'ble Apex Court remitted the second appeal to this Court with a pointer that if the High court is of the opinion that any question of law regarding perversity of findings recorded by the first appellate Court arises on facts and evidence then the same should be framed and in that light the second appeal should be decided vide judgment and order dated 9.2.2005 of the Apex Court.
11. This appeal was called out for hearing on 28.3.2011 and was finally heard and closed for judgment on 11.4.2011.
12. In support of the appeal, learned Counsel for the appellant prayed that this Court should go through the entire evidence that was adduced by both parties and also the documents proved on record of the trial Court in order to find out whether any substantial question of law about the perversity on the part of the first appellate Court in the matter of appreciation of evidence and facts could be framed.
13. From the reading of the judgment of the Apex Court, it is clear to me that the question whether bar under Sections 91 and 92 of the Indian Evidence Act would be attracted and whether a party could lead oral evidence does not survive in view of the judgment of the Supreme Court in the case of Smt.
Gangabai...Versus... Smt. Chhabubai, cited supra, and further in view of the remand order dated 9.2.2005 made by the Apex Court limited to the framing of question of law as to the perversity of finding by the first appellate Court. This Court finds that the first appellate Court was wrong in reading the said bar on the ground that the plaintiff by leading oral evidence wanted to change the terms of the written sale-deed in question and could not lead oral evidence to vary or contradict the terms of the sale-deed.
14.
Now, I proceed to frame the following
substantial question of law.
(i) Whether the findings of
facts recorded by the first appellate Court on oral as well as documentary evidence are perverse ?
SUBMISSIONS :
15. In support of the appeal and the aforesaid substantial question of law, learned Counsel for the appellant made the following submissions.
(a) Perusal of the judgment recorded by the first appellate Court shows that it has not come into close quarters with the reasonings assigned by the trial Court nor it has assigned its own reasons for arriving at a different finding and therefore, the judgment of the first appellate Court is perverse and liable to be set aside.
(b) Perusal of the findings recorded by the trial Court on evidence on facts show that the circumstances relied upon by the trial Court to hold that the transaction in question was simple mortgage and not out and out sale-deed have not been taken into consideration by the appellate Court by coming into the close quarters with the reasonings adopted by the trial Court.
(c) The reasons recorded by the first appellate Court if seen show a clear perversity on the part of the first appellate Court in recording the findings of facts and evidence and therefore, there is perversity.
(d) The first appellate Court did not
examine the materials and evidence on record as
carefully as was done by the trial Court and
particularly when the trial Court had advantage of looking at the demeanour of the witnesses.
(e) Reading of the evidence of the witnesses clearly shows that the suit transaction was not to be meant as out and out sale-deed but was for satisfying the temporary need of the appellant/plaintiff for Rs.10,000/- and since the respondent/defendant had no licence for money lending business and the sale-deed was executed by way of security and was thus a nominal sale-deed.
16. Second appeal should therefore be allowed by restoring the judgment of the trial Court. He placed reliance on the following decisions.
(i) 2001 (2) Mh.L.J. 786 (Santosh
Hazari...Versus...Purushottam Tiwari deceased by
L.Rs.)
(ii) A.I.R. (38) 1951 Supreme Court 120
(Sarju Pershad Ramdeo Sahu...Versus...Jwaleshwari
Pratap Narain Singh and others)
(iii) AIR 1958 Supreme Court 1042 (Kakumanu Pedasubhayya and another...Versus...Kakumanu Akkamma and another).
(iv) 1996 (7) Supreme Court Cases 389
(Kochukakkada Aboobacker (Dead) By Lrs. and
others...Versus...Attah Kasim and others).
(v) AIR 1979 Supreme Court 867 (M/s. Orient Distributors...Versus...Bank of India Ltd. and others).
(vi) AIR 1992 Supreme Court 1604 (Jagdish Singh...Versus...Natthu Singh)
(vii) 1997 (3) Supreme Court Cases 546 (Major Singh...Versus...Rattan Singh (Dead) By Lrs. and others)
(viii) AIR 2002 Madhya Pradesh 139 (Balram Kirar through Lrs....Versus...Ramkrishna and another)
(ix) 1982 (1) Supreme Court Cases 4 (Smt. Gangabai w/o Rambilas Gilda...Versus... Smt. Chhabubai w/o Pukharajji Gandhi)
(x) AIR 1996 Supreme Court 2823 (Smt. Sawarni...Versus...Smt. Inder Kaur and others)
(xi) 2001 (4) Supreme Court Cases 756 (Madhukar and others...Versus...Sangram and others)
(xii) 1976 U.C.R. (Bom.) 195 (State of Maharashtra...Versus...Vilas Desharath Shate & others)
17. Per contra, learned Counsel for respondent No.1 opposed the appeal and argued that all the findings of facts recorded by the appellate Court are based on evidence oral as well as documentary and there is no perversity whatsoever as stated by the learned Counsel for the appellants. No material was brought on record to show that the respondent was habitually lending the money without licence. One alleged single transaction in law does not make it money lending transaction without licence. No pleading or evidence was placed before the trial Court on that score. Only bare words of the plaintiff that the transaction was not out and out sale are not enough and no circumstances have been brought on record to show that the transaction was a nominal one. He, therefore, prayed for dismissal of the second appeal.
CONSIDERATION :
18. With the assistance of the learned Counsel for the rival parties and their insistence to look through the evidence of the parties documentary as well as oral, I have carefully perused the entire evidence on record. I have also carefully perused the findings recorded by both the Courts below. Suffice it to say that I am required to only find out whether there is any perversity on the part of the first appellate Court in the matter of appreciation of evidence on facts and evidence. My clear answer is that there is no perversity on the part of the first appellate Court at all and the substantial question of law will have to be answered in the negative, for which I record the following reasons.
(a) The trial Court straightway relied on the evidence of P.W. 2 Ramdas and P.W. 3 Gulabchand on the ground that there was no reason why they should help the plaintiff. Cross-examination of these two witnesses, which has been ignored by him however, shows totally inconsistent version. While P.W. 2 - Ramdas stated that out of Rs.10,000/-, Rs.2,000/- were paid in his presence and the balance amount was agreed to be paid later on; in the cross-examination he stated that Rs.2,000/- was paid in his presence and Rs.2,000/- was paid in the presence of Sub-Registrar and he cannot tell whether the endorsement that Rs.2400/- were paid before Registrar was right or wrong. The remaining recitals in the sale-deed were not false. As against this, P.W. 3 - Gulabchand stated that out of Rs.10,000/-, Rs.2,000/- were paid before the Sub-Registrar and nothing was paid in his presence and the plaintiff never received Rs.2400/- as stated in the sale-deed.
He denied that the plaintiff received an amount of Rs.7,600/- or Rs.2400/- before Sub-Registrar. Thus, the evidence of these two witnesses is unreliable and was required to be wholly rejected which the appellate Court did while discussing the same vide paragraph No.13 of his judgment and in my opinion rightly.
(b) The trial Court held that after execution of sale-deed in 1972, the plaintiff never exercised right under the sale-deed for five years. It is to be noted that the suit property is open plot and the defendant after five years started activity of digging the pits for making construction. There was nothing wrong if the defendant wanted to start activity on the suit plot after five years of its sale-deed, since there was no structure standing on the plot. On the contrary, the record shows that the defendant got a plan sanctioned from the Municipal Council after five years of the sale-deed for making construction which is at Exh.68. Merely because the defendant started his activity of getting plan sanctioned for constructing a house or making some construction on a open plot, one cannot jump to a conclusion that the sale-deed was nominal. On the contrary, the appellant/plaintiff did not say a word as to within what period he was to repay the entire amount and get back the sale-deed executed in his favour. If the sale transaction was really nominal, what steps did he take in those five years to assert accordingly. What amount did he repay during those five years. Appellant/plaintiff kept all this a 'mystery'. To repeat, this is all the more so because the appellant/plaintiff never asserted during this period of five years that the sale-deed was nominal particularly because he had transferred the property by a registered sale-deed.
(c) The conclusion drawn by the trial Court that the market price of the suit plot was at the relevant time not less than Rs.21,000/- was clearly perverse as rightly held by the appellate Court in paragraph No.14 of its judgment. There was evidence on record to show that on the same date of the sale-deed in question i.e. 23.11.1972, part of this very plot admeasuring 520 sq. ft. was sold to one Shantabai Chaudhari for Rs.1,000/- while the suit plot admeasuring Rs.2,000/- sq. ft. was sold for Rs.10,000/-. This means that on 23.11.1972, the market price of the suit plot was not more than Rs.3,846/-
but still the conveyance was made for Rs.10,000/-.
There was thus clear admission given by P.W. 5 Damodhardas, the earlier vendor of the appellant/plaintiff that the market price of the suit plot was not more than Rs.3,846/-.
(d) The appellate Court has recorded independent reasons as well and has also criticized the role of the trial Court in relying on his own spot inspection note as to whether some construction was made on the suit plot or not. The judgment of the appellate Court, in my opinion, is thus clearly based on the correct appreciation of evidence. There is absolutely no perversity. I have seen the decisions cited by the learned Counsel for the appellant carefully. The principles set out in those decisions are in fact being followed by me.
19. In
ig the result, I find no merit in the
present second appeal. The same is, therefore,
dismissed. No order as to costs.
JUDGE
Learned Counsel for the appellant prays for stay of this judgment.
The judgment is stayed for a period of eight weeks from today.
JUDGE ssw
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