Before parting with the judgment, I think it necessary to
place on record what are seen to be the established obligations of the
first appellate Court while deciding the first appeal. If the first
appellate Court agrees with the view of the trial Court, there is no
need for it to restate the effect of the evidence or reiterate the
reasons given by the trial Court and an expression of general
agreement with reasons given by the Court should suffice the
purpose as held in the case of Girijanandini Devi and others vs.
Bijendra Narain Choudhary, reported in AIR 1967 SC 1124.
However, when the findings of facts recorded by the trial Court are
to be reversed by the first appellate Court, the first appellate Court
must come into close quarters with the reasoning assigned by the
trial Court and then assigning its own reasons, it may record
different findings of fact. It must be remembered that first appeal is
a valuable right of the parties and unless restricted by law, the whole
case in the appeal is open for rehearing on questions of facts as well
as questions of law. The judgment of the first appellate Court must,
therefore, reflect its application of mind to the evidence available on
record and must show the reasons for recording the findings which
should be recorded on all the issues involved in the appeal and on
which adjudication is sought by the parties. A useful reference may
be made to the law laid down by the Hon’ble Apex Court in this
regard, in the case of Santosh Hazari vs. Purushottam Tiwari
(Dead) by Lrs., reported in AIR 2001 SC 965. These are the duties
of the appellate Court which must be discharged by it while deciding
first appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.113 OF 1995
Bhaskar s/o. Narayan Khandare.
...VERSUS...
Ramesh s/o. Bhimrao Ghogre.
CORAM : S.B. SHUKRE, J.
DATE : 24thFEBRUARY, 2014.
Citation; 2015(7) ALLMR375
1. This appeal is directed against the judgment and decree
passed on 10th February, 1995 in Regular Civil Appeal No.162 of
1992 thereby reversing the judgment and decree of dismissal of
Regular Civil Suit No.75 of 1989 passed on 30th April, 1992 by Civil
Judge, Junior Division, Balapur. The respondent Nos.1 and 2 are the
original plaintiffs and the appellants and respondent Nos.3 to 7 are
the original defendants. The respondent No.3 was the father of
original plaintiffs and respondent No.4 is the mother of the original
plaintiffs and they were original defendant Nos.1 and 2.
2. The suit property involved in this case consists of four
lands (for short 'suit-lands') as described in details in plaint
paragraph No.2. According to the respondent Nos.1 and 2, all the
suit lands were sold out to them by respondent No.3 by registered
sale-deed executed on 4.4.1972. They submitted that consideration
of Rs.2,000/- was also paid to the respondent No.3 and soon after
registration of the sale-deed, names of both these respondent Nos.1
and 2 came to be recorded as owners in the revenue record. They
submitted that in view of the sale of the suit lands to them by
respondent No.3, they became the absolute owners of the suit lands
and respondent Nos.3 and 4 ceased to have any title or interest in the
suit lands. They submitted that the respondent Nos.3 and 4, after the
sale of the suit lands to respondent Nos.1 and 2, being no longer the
owners of the suit lands, had no right to alienate the same to rest of
the defendants i.e. appellants and respondent Nos.4 to 7. They
further submitted that if it was held that the respondent Nos.3 and 4
were competent to make alienations of the suit lands, it be also held
that same were without any legal basis, as permission of the District
Judge was not obtained for making the alienations of the suit-lands,
these respondents being minors at relevant time, having interest
since birth in the ancestral properties, that the suit lands were. They
also submitted that the alienations of suit-lands were without legal
necessity and were not made for any benefit to the estate. Therefore,
the respondent Nos.1 and 2 filed a suit for a declaration that the
alienations made by the respondent Nos.3 and 4 were not binding
upon them and for setting aside the alienations and for recovery of
possession of the suit lands.
3. The respondent Nos.3-Bhimrao, filed his consent written
statement, vide Exhibit-18, and admitted the entire claim of the
respondent Nos.1 and 2. The respondent No.4-Krushnabai also filed
her separate written statement at Exhibit-20 admitting the entire
claim of the respondent Nos.1 and 2. The appellants (original
defendant Nos.3,5,7 and 8) and respondent No.5-Sheshrao (Original
defendant No.4) filed their joint written statement, vide Exhbit-17
resisting the suit. Their main contention was that the sale-deed
between the respondent No.3 on the one hand and respondent Nos.1
and 2 on the other was a nominal one and even after execution of the
sale-deed, respondent No.3 continued to remain in possession of the
suit lands. They submitted that the said sale-deed was not a genuine
and valid document and they denied that the respondent Nos.1 and 2
became the owners of the suit lands by virtue of the said sale-deed.
They submitted that there was in existence legal necessity to be met
by respondent Nos.3 and 4 and, therefore, they sold out the suit
lands to remaining defendants i.e. appellants and respondent No.7
and that they were the bona fide purchasers for valuable
consideration. They submitted that the permission of the District
Judge was also not necessary for alienations of the suit-lands to
appellants. They submitted that the respondent No.7 (original
defendant No.9) purchased one of the suit lands bearing Survey
No.108/2 after obtaining necessary permission from the District
Judge, Akola in M.J.C. No.34 of 1977 and the permission was also
sought by the respondent No.5 for sale of the said suit-land to
respondent No.7. They submitted that the respondent No.5-
Sheshrao, was wrongly added as a party defendant. Thus, they
prayed for dismissal of the suit with costs.
4. The respondent No.6 (original defendant No.6) filed his
written statement, vide Exhibit-19, submitting that he had no
knowledge about any transaction of sale between the respondent
Nos.1 and 2 on the one hand and respondent No.3 on the other. He
submitted that he purchased one acre of land out of field Survey
No.105/2 for a valuable consideration of Rs.1,500/- on 1.8.1985 and
it was sold out to him by respondent No.3 for benefit to the estate
and for also meeting legal necessity. He submitted that he had no
knowledge as to whether or not any permission was obtained from
the District Judge for sale of shares of minors in the property. He
denied that the sale-deed dated 1.8.1985 executed in his favour was
void ab initio. He submitted that so far as sale transaction with him
was concerned, same being entered for meeting legal necessity and
for earning benefit to the estate, was valid. But, he submitted that he
could not say the same thing about the alienations made by the
respondent No.3 of the other suit-lands in favour of remaining
defendants (appellants and respondent No.7). He submitted that the
respondent No.3 being addicted to drinking and other vices, all
other alienations, barring the alienation in his own favour, might be
for satisfaction of the lust and desire of respondent No.3. Without
prejudice to all these contentions, he further submitted that if the
Court found that the respondent No.3 did not have any right to sell
the property, the amount of consideration of Rs.1,500/- be refunded
to him.
5. The respondent No.7 (original defendant No.9) did not
file his written statement and the suit proceeded against him without
his written statement.
6. This appeal has been admitted by this Court on 3rd April,
1995, on two substantial questions of law. The substantial questions
of law that arise for my consideration are :
1. Whether the Appellate Court was justified in
holding that appellants were not bona fide
purchasers for valuable consideration ?
2. Whether the Appellate Court was justified in
reversing the finding recorded by trial Court on issue
No.1 ?
7. I have heard Mr.S.N. Dhanagare, learned counsel for the
appellants and Mr.L.A.Mohta, learned counsel for the respondent
Nos.1 and legal representatives of Respondent No.2, (2-A) to
(2-C) and Ku.U.R. Tanna, learned counsel for the legal
representatives of Respondent No.3, (3-A) and (3-C). None
appeared for remaining respondents though duly served.
8. With the assistance of Mr.S.N. Dhanagare, Mr.L.A.Mohta
and Ku. U.R. Tanna, I have carefully gone through the paper book of
the appeal and also the record of the trial Court.
9. Learned counsel for the appellants has submitted that the
first appellate Court has, without considering the evidence and
without taking into account the findings of facts recorded by the trial
Court which were based upon the proper appreciation of evidence
available on record, has reversed the findings of the trial Court and
partly decreed the suit for possession of the suit lands except the
land bearing Survey No.108/2. He has invited my attention to
evidence on record to point out some of the established material
facts which together go to show that sale-deed dated 04.04.1972
(Exhibit-44) was nominal and appellants were bonafide purchasers
for value. These are: (i) at the time of execution of Exhibit-44 saledeed,
the respondent Nos.1 and 2 were minors and did not do
anything to earn, (ii) there is no pleading and no evidence adduced
by the respondent Nos.1 and 2 showing as to how the consideration
of Rs.2,000/- for purchasing the suit lands, vide Exhibit-44, was paid
and who had arranged for the consideration, (iii) the possession of
the suit lands was not with the respondent Nos.1 and 2 and that
mutation entry in the revenue record showing the respondent Nos.1
and 2 as owners (vide Exhibit-45) was cancelled by another
mutation entry (vide Exhibit-77) because as per the revenue record,
the respondent Nos.1 and 2 were not in possession of the suit lands
and that the respondent No.3 was shown to be in possession of the
suit lands, (iv) the possession of the suit lands after alienations made
to the appellants and other respondents was also passed over by
respondent No.3 to these parties, and (v) evidence of parties clearly
showed that there was some dispute going on in respect of a ceiling
land between Datta Sansthan and respondent No.3 and that the
respondent No.3 had obtained loan of Rs.9,000/- on the suit lands,
pointing out the fact that the sale-deed (vide Exhibit-44) was only
nominal and was neither intended to be acted upon nor was actually
acted upon by the parties thereto. He thus submits that the findings
recorded by the trial Court on the basis of such evidence that the sale
transaction of dated 4.4.1972 (Exhibit-44) was not genuine and was
only a nominal transaction and on the other hand the alienations of
the suit lands made by the respondent No.3 in favour of appellants
and remaining respondents were for bona fide reasons and for
valuable considerations, could not have been disturbed by the first
appellate Court.
10. Mr. Mohta, learned counsel for the respondent Nos.1 and
2, on the other hand submits that the transaction dated 4.4.1972
evidenced by a registered document of sale-deed was genuine and
had been acted upon by the parties, as seen from the evidence
adduced by both sides. He submits that the consideration of the
sale-deed as well as mutation entry (vide Exhibit-45) have been
admitted by the appellants and the remaining respondents and,
therefore, even though the respondent Nos.3 and 4, the parents of the
respondent Nos.1 and 2 did not enter the witness box, it did not have
any adverse impact on the case of the respondent Nos.1 and 2. He
further submits that the sale-deed (vide Exhibit-44), being a
registered instrument, was a public document and in view of the
provision of Section 3 of the Transfer of Property Act, 1882 all the
subsequent purchasers of the suit lands were presumed have notice
of the same and, therefore, would not be permitted to say that they
being the bona fide purchasers for value and having no notice of the
earlier transaction, were entitled to protect their possession of the
suit lands. He further submits that except for one of the suit lands
bearing Survey No.108/2, the evidence on record has shown that no
permission has been granted by the District Judge for making of
alienations of the suit lands even though same was necessary, the
suit lands being ancestral property and at the time of those
alienations, the respondent Nos.1 and 2 being minor coparceners had
right and interest in the same. On these grounds, he has urged that
the appeal is liable to be dismissed with costs.
11. Ku.U.R. Tanna, learned counsel has adopted the
arguments so canvassed on behalf of the respondent Nos.1
and 2.
12. On going through the impugned judgment and decree as
well as evidence available on record, I find that there is great
substance in the argument so canvassed before me on behalf of
appellants and no merit in the argument canvassed on behalf of
respondent Nos.1,2 and respondent Nos.3(A) and 3(B).
13. The trial Court upon an in-depth consideration of the
evidence adduced by the rival parties recorded findings that the saledeed
dated 4.4.1972 (Exhibit-44) was nominally executed by
respondent No.3 in favour of respondent Nos.1 and 2 and that the
respondent Nos.3 and 4 had joined hands with respondent Nos.1 and
2 in bringing the suit against the appellants and remaining
respondents. Upon such consideration of evidence, the learned
judge of the trial Court also found that the alienations of the suit
lands made by the respondent Nos.3 and 4 in favour of appellants
and respondent Nos.6 and 7 were for legal necessity and, therefore,
these parties were bona fide purchasers. Accordingly, the trial Court
dismissed the suit.
14. If we go through the evidence brought on record by the
rival parties, it could be seen that the findings so recorded by the
trial Court are completely based upon the evidence available on
record and represent a view that can be logically taken from such
evidence.
15. It is an admitted fact that the suit lands have been
purchased by sons (respondent Nos.1 and 2) from father (respondent
No.3) at a time, when both sons were minors and were not earning
anything. The suit lands together measured about 14 acres and the
consideration paid for acquiring of such a large chunk of land has
been stated to be of Rs.2,000/-. Of course, inadequacy of
consideration is not a valid ground for setting aside the sale
transaction, but it does raise a suspicion that something is amiss in
the transaction. Then, the sons being minors at the time of purchase
of the suit lands, some evidence explaining as to how the
consideration was paid and what was the source of consideration
should have been tendered. There is neither any pleading made nor
evidence adduced in this regard by the respondent Nos.1 and 2 and,
therefore, a further doubt is created about the genuineness of the
transaction. There have been several other factors brought on record
through the evidence of witnesses of the appellants and respondent
Nos.5 to 7, casting doubt about genuineness of the said sale-deed
and these factors have been cumulatively considered by the trial
Court as proving the fact that the sale-deed (Exhibit-44) was only a
nominal one and was not a genuine document. These factors as seen
from the evidence of DW 1-Bhaskar-, DW 2-Rukhminibai, DW3-
Jairam, DW 4-Sadanand are as follows :
i) The evidence shows that at the relevant time i.e. on
4.4.1972, there was some dispute going on between respondent No.3
and Datta Sansthan in respect of one ceiling land and respondent
No.3 had some interest in this land. The evidence further indicates
that to avoid further complications, respondent No.3 sold out the suit
lands to his sons on 4.4.1972 nominally.
ii) There has been no challenge to the evidence of DW 1-
Bhaskar-, DW 2-Rukhminibai, DW3-Jairam and DW 4-Sadanand on
the point of dispute going on between the respondent No.3 and Datta
Sansthan in respect of ceiling land and execution of nominal saledeed
by respondent No.3 in favour of respondent Nos.1 and 2.
iii) The respondent Nos.1 and 2 did not lead any evidence
as to how did they generate funds for paying the consideration of the
sale-deed (Exhibit-44), when at the relevant time they were minors.
iv) The respondent No.3 obtained loan of Rs.9,000/- from
the land mortgaged with Bank by showing himself to be the owner
of the suit lands and on 15.4.1974, the Bank had also issued notices
for the auction purchase of field Survey Nos.150/2, 105/1, 145/2 and
108/2 situated at village Bharatpur, which were shown to be in the
name of respondent No.3. These facts proved through the evidence
of DW 6-Ajabrao, the employee of land mortgage Bank, have not
been challenged by respondent Nos.1 and 2.
v) Though Exhibit-45 is a mutation entry in the revenue
record, showing names of respondent No.1 and 2 as owners of the
suit lands, there is a subsequent mutation entry at Exhibit-77 which
effectively cancels the mutation entry, vide Exhibit-45. The
subsequent mutation entry at Exhibit-77 discloses that the names of
respondent Nos.1 and 2 have been removed from the revenue record
on the ground that the respondent No.3 is in possession of the suit
lands and it is specifically mentioned therein that he is owner of the
suit lands.
vi) The sale-deed dated 4.4.1972 was never acted upon by
the parties as subsequently by mutation entry vide Exhibit-77,
respondent No.3 has been shown in the revenue record to be the
owner of the suit lands and loan was obtained by respondent No.3
from the land mortgage Bank on 15.4.1974 over the suit lands, by
showing himself to be the owner thereof.
vii) If respondent No.3 had really intended to transfer
ownership of the suit lands to his sons, there would not have been a
subsequent mutation entry (Exhibit-77) showing him to be in
possession of the suit lands and respondent No.3 would not have
obtained any loan on the suit lands on 15.4.1974.
viii) At the time of execution of the sale-deeds of the suit
lands in favour of other defendants, (appellants and respondent Nos.
6 and 7) the respondent No.3 delivered possession of the respective
suit lands to these parties, which is a very strong circumstance
indicating that the suit lands were in possession of the respondent
No.3 at the time of alienations made by him to the said parties and
that he handed over actual possession of the respective suit lands to
them on the basis of those sale-deeds.
16. Above stated factors emerge from the evidence of above
referred witnesses of other defendants i.e. appellants and respondent
Nos. 5 to 7 and since there is neither any challenge to the said
evidence nor any doubtful circumstance having appeared in the
cross-examination of these witnesses taken by the learned counsel
for the respondent Nos.1 and 2, it has to be said that this evidence
strongly probablises the case of other defendants i.e. the appellants
and respondent Nos.5 to 7 and completely weakens the case of the
respondent Nos.1 to 4. Therefore, the conclusions drawn by the trial
Court that the sale-deed dated 4.4.1972 was a nominal document not
representing any genuine transaction of sale between the respondent
No.3 on the one hand and respondent Nos.1 and 2 on the other and
that respondent Nos.3 and 4 joined hands with respondent Nos.1 and
2 in bringing a false and frivolous suit against the appellants and
remaining respondents cannot be said to be not based upon the
evidence available on record or the result of non-consideration of
material evidence or based upon some extraneous material. The
conclusions so drawn can also not to be founded on such a view as
can never be possibly taken by application of process of reasoning
and logic in the sense it is understood by a man of prudence.
17. It seems, however, the learned District Judge turned
oblivious of the great deal of evidence glaringly showing the factors
going in favour of case of other defendants (appellants and
respondent Nos. 5 to 7) and against the case of the respondent Nos.1
and 2. The learned District Judge, while reversing the aforestated
findings of facts recorded by the trial Court gave only three reasons
namely : i) the appellants and respondent Nos.5 to 7 were not parties
to the sale-deed and had no concern with the family affairs of
respondent Nos.1 and 2 on the one hand and respondent Nos.3 and 4
on the other, ii) the appellants and other respondents had admitted in
their plaint that the consideration of Rs.2,000/- was paid to the
respondent No.3 and so it did not lie in the mouths of the appellants
and remaining respondents that the sale-deed at Exhibit-44 was a
nominal document, and iii) said sale-deed was also acted open and
the names of both respondent Nos.1 and 2 were mutated in the
record of rights. These reasons in fact showed only the half truth.
The appellants and other respondents never disputed execution of
the sale-deed for a consideration of Rs.2,000/-. What did they
dispute was the intention to transfer the ownership by submitting
that the ownership was never conveyed to respondent Nos.1 and 2,
the sale-deed being nominally executed. The appellants and the
other respondents had also brought on record subsequent mutation
entry (vide Exhibit-77) canceling the effect of the previous mutation
entry (vide Exhibit-45). These pleadings and said evidence together
with remaining evidence discussed earlier were not even cursorily
gone through by the learned District Judge and the result is there for
us to see, completely erroneous and perverse findings based upon
non-consideration of the material evidence available on record.
18. Having regard to the nature of evidence available on
record and which has been discussed at length in earlier paragraphs,
I am of the view that there is absolutely no scope for reversing the
findings recorded by the trial Court as regards the effect of sale-deed
dated 4.4.1972 (vide Exhibit-44). Accordingly, I hold that sale-deed
dated 4.4.1972 (vide Exhibit-44) being nominally executed by the
respondent No.3 in favour of respondent Nos.1 and 2 does not
represent any genuine conveyance and, therefore, respondent Nos.1
and 2 cannot be said to have become the absolute owners of the suit
lands. Consequently, I further hold that the respondent Nos.3 and 4
did have right, title and interest in the suit lands at the time when
alienations of the suit lands through various sale-deeds were made to
appellants and other respondents. The question No.2 is, therefore,
answered as in the negative.
19. The finding of the trial Court that the appellants and other
respondents were bona fide purchasers for valuable consideration
has been reversed by the learned District Judge. For such reversal,
the learned District Judge has assigned the reason of absence of any
evidence on record to show that the appellants and other respondents
had made reasonable inquiry about the marketability of the title of
respondent No.3 respect of suit lands before purchasing them. In
paragraph 13, learned District Judge states that DW 1-Bhaskar did
not utter a single word in this respect nor did DW 2-Rukhminibai
say anything about it. He also states that DW 4-Sadanand
maintained silence in this regard and only DW 3-Jairam deposed that
before purchasing the suit lands, he had made reasonable inquiry in
that respect. This evidence, in the opinion of learned District Judge,
indicated that the appellants and remaining other respondents were
not bonafide purchasers for value without notice of rights of
respondent Nos.1 and 2.
20. With due respect to the learned District Judge, I must say
that the learned District Judge has either misread the evidence or
missed some vital portions thereof. Barring DW 2-Rukhminibai, the
evidence of all other witnesses, namely, DW 1-Bhaskar, DW 3-
Jairam and DW 4-Sadanand clearly discloses that these witnesses
had made due inquiry in this respect. If DW 2-Rukhminibai had not
made any inquiry, it cannot be seen as a lapse affecting the
genuineness of the alienations of all the suit lands as after all, there
was a suit commonly brought against these parties in respect of
alienations of the suit lands made at different points of time and the
defence as well as evidence of these parties were commonly
presented. In such a case, therefore, the evidence of all witnesses is
required to be read together and when we do so by and large we find
that purchasers had made inquiries. That apart, the admission given
by DW 2-Rukhminibai that she did not make any inquiry as regards
ownership of the suit lands at the time of its purchase has to be
understood as having been given in the natural course of conduct not
adversely affecting her case in any manner. Admittedly, all the
transactions and affairs of her family were being looked after by her
husband Sakharam Sirsat and unless and until such admission came
from the mouth of Sakharam Sirsat, not much significance can be
given to the said admission of Rukhminibai. Significantly no
suggestion has been made to Rukminibai in her cross-examination
by respondent Nos. 1 and 2 that her husband did not make any
inquiry in this respect. The question of putting the appellants and
remaining respondents on a notice by virtue of Section 3 of the
Transfer of Property Act, 1882 would also not arise in this case as
the sale-deed (Exhibit-44) itself has been held to be a nominal
document not genuinely made. Then, it is nobody’s case that the
alienations of the suit lands through various sale-deeds to appellants
and other respondents were without any consideration. Therefore, I
find that the learned Judge of the trial Court has rightly held that the
alienations of the suit lands to appellants and respondent Nos.6 and
7 were valid and these parties were bona fide purchasers for valuable
consideration. The question No.1 is, therefore, answered as in the
negative.
21. Before parting with the judgment, I think it necessary to
place on record what are seen to be the established obligations of the
first appellate Court while deciding the first appeal. If the first
appellate Court agrees with the view of the trial Court, there is no
need for it to restate the effect of the evidence or reiterate the
reasons given by the trial Court and an expression of general
agreement with reasons given by the Court should suffice the
purpose as held in the case of Girijanandini Devi and others vs.
Bijendra Narain Choudhary, reported in AIR 1967 SC 1124.
However, when the findings of facts recorded by the trial Court are
to be reversed by the first appellate Court, the first appellate Court
must come into close quarters with the reasoning assigned by the
trial Court and then assigning its own reasons, it may record
different findings of fact. It must be remembered that first appeal is
a valuable right of the parties and unless restricted by law, the whole
case in the appeal is open for rehearing on questions of facts as well
as questions of law. The judgment of the first appellate Court must,
therefore, reflect its application of mind to the evidence available on
record and must show the reasons for recording the findings which
should be recorded on all the issues involved in the appeal and on
which adjudication is sought by the parties. A useful reference may
be made to the law laid down by the Hon’ble Apex Court in this
regard, in the case of Santosh Hazari vs. Purushottam Tiwari
(Dead) by Lrs., reported in AIR 2001 SC 965. These are the duties
of the appellate Court which must be discharged by it while deciding
first appeal.
22. In the result, the appeal deserves to be allowed with costs.
23. The appeal is allowed with costs.
24. Regular Civil Suit No.75 of 1989 stands dismissed.
25. The decree be drawn up accordingly.
Print Page
place on record what are seen to be the established obligations of the
first appellate Court while deciding the first appeal. If the first
appellate Court agrees with the view of the trial Court, there is no
need for it to restate the effect of the evidence or reiterate the
reasons given by the trial Court and an expression of general
agreement with reasons given by the Court should suffice the
purpose as held in the case of Girijanandini Devi and others vs.
Bijendra Narain Choudhary, reported in AIR 1967 SC 1124.
However, when the findings of facts recorded by the trial Court are
to be reversed by the first appellate Court, the first appellate Court
must come into close quarters with the reasoning assigned by the
trial Court and then assigning its own reasons, it may record
different findings of fact. It must be remembered that first appeal is
a valuable right of the parties and unless restricted by law, the whole
case in the appeal is open for rehearing on questions of facts as well
as questions of law. The judgment of the first appellate Court must,
therefore, reflect its application of mind to the evidence available on
record and must show the reasons for recording the findings which
should be recorded on all the issues involved in the appeal and on
which adjudication is sought by the parties. A useful reference may
be made to the law laid down by the Hon’ble Apex Court in this
regard, in the case of Santosh Hazari vs. Purushottam Tiwari
(Dead) by Lrs., reported in AIR 2001 SC 965. These are the duties
of the appellate Court which must be discharged by it while deciding
first appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.113 OF 1995
Bhaskar s/o. Narayan Khandare.
...VERSUS...
Ramesh s/o. Bhimrao Ghogre.
CORAM : S.B. SHUKRE, J.
DATE : 24thFEBRUARY, 2014.
Citation; 2015(7) ALLMR375
1. This appeal is directed against the judgment and decree
passed on 10th February, 1995 in Regular Civil Appeal No.162 of
1992 thereby reversing the judgment and decree of dismissal of
Regular Civil Suit No.75 of 1989 passed on 30th April, 1992 by Civil
Judge, Junior Division, Balapur. The respondent Nos.1 and 2 are the
original plaintiffs and the appellants and respondent Nos.3 to 7 are
the original defendants. The respondent No.3 was the father of
original plaintiffs and respondent No.4 is the mother of the original
plaintiffs and they were original defendant Nos.1 and 2.
2. The suit property involved in this case consists of four
lands (for short 'suit-lands') as described in details in plaint
paragraph No.2. According to the respondent Nos.1 and 2, all the
suit lands were sold out to them by respondent No.3 by registered
sale-deed executed on 4.4.1972. They submitted that consideration
of Rs.2,000/- was also paid to the respondent No.3 and soon after
registration of the sale-deed, names of both these respondent Nos.1
and 2 came to be recorded as owners in the revenue record. They
submitted that in view of the sale of the suit lands to them by
respondent No.3, they became the absolute owners of the suit lands
and respondent Nos.3 and 4 ceased to have any title or interest in the
suit lands. They submitted that the respondent Nos.3 and 4, after the
sale of the suit lands to respondent Nos.1 and 2, being no longer the
owners of the suit lands, had no right to alienate the same to rest of
the defendants i.e. appellants and respondent Nos.4 to 7. They
further submitted that if it was held that the respondent Nos.3 and 4
were competent to make alienations of the suit lands, it be also held
that same were without any legal basis, as permission of the District
Judge was not obtained for making the alienations of the suit-lands,
these respondents being minors at relevant time, having interest
since birth in the ancestral properties, that the suit lands were. They
also submitted that the alienations of suit-lands were without legal
necessity and were not made for any benefit to the estate. Therefore,
the respondent Nos.1 and 2 filed a suit for a declaration that the
alienations made by the respondent Nos.3 and 4 were not binding
upon them and for setting aside the alienations and for recovery of
possession of the suit lands.
3. The respondent Nos.3-Bhimrao, filed his consent written
statement, vide Exhibit-18, and admitted the entire claim of the
respondent Nos.1 and 2. The respondent No.4-Krushnabai also filed
her separate written statement at Exhibit-20 admitting the entire
claim of the respondent Nos.1 and 2. The appellants (original
defendant Nos.3,5,7 and 8) and respondent No.5-Sheshrao (Original
defendant No.4) filed their joint written statement, vide Exhbit-17
resisting the suit. Their main contention was that the sale-deed
between the respondent No.3 on the one hand and respondent Nos.1
and 2 on the other was a nominal one and even after execution of the
sale-deed, respondent No.3 continued to remain in possession of the
suit lands. They submitted that the said sale-deed was not a genuine
and valid document and they denied that the respondent Nos.1 and 2
became the owners of the suit lands by virtue of the said sale-deed.
They submitted that there was in existence legal necessity to be met
by respondent Nos.3 and 4 and, therefore, they sold out the suit
lands to remaining defendants i.e. appellants and respondent No.7
and that they were the bona fide purchasers for valuable
consideration. They submitted that the permission of the District
Judge was also not necessary for alienations of the suit-lands to
appellants. They submitted that the respondent No.7 (original
defendant No.9) purchased one of the suit lands bearing Survey
No.108/2 after obtaining necessary permission from the District
Judge, Akola in M.J.C. No.34 of 1977 and the permission was also
sought by the respondent No.5 for sale of the said suit-land to
respondent No.7. They submitted that the respondent No.5-
Sheshrao, was wrongly added as a party defendant. Thus, they
prayed for dismissal of the suit with costs.
4. The respondent No.6 (original defendant No.6) filed his
written statement, vide Exhibit-19, submitting that he had no
knowledge about any transaction of sale between the respondent
Nos.1 and 2 on the one hand and respondent No.3 on the other. He
submitted that he purchased one acre of land out of field Survey
No.105/2 for a valuable consideration of Rs.1,500/- on 1.8.1985 and
it was sold out to him by respondent No.3 for benefit to the estate
and for also meeting legal necessity. He submitted that he had no
knowledge as to whether or not any permission was obtained from
the District Judge for sale of shares of minors in the property. He
denied that the sale-deed dated 1.8.1985 executed in his favour was
void ab initio. He submitted that so far as sale transaction with him
was concerned, same being entered for meeting legal necessity and
for earning benefit to the estate, was valid. But, he submitted that he
could not say the same thing about the alienations made by the
respondent No.3 of the other suit-lands in favour of remaining
defendants (appellants and respondent No.7). He submitted that the
respondent No.3 being addicted to drinking and other vices, all
other alienations, barring the alienation in his own favour, might be
for satisfaction of the lust and desire of respondent No.3. Without
prejudice to all these contentions, he further submitted that if the
Court found that the respondent No.3 did not have any right to sell
the property, the amount of consideration of Rs.1,500/- be refunded
to him.
5. The respondent No.7 (original defendant No.9) did not
file his written statement and the suit proceeded against him without
his written statement.
6. This appeal has been admitted by this Court on 3rd April,
1995, on two substantial questions of law. The substantial questions
of law that arise for my consideration are :
1. Whether the Appellate Court was justified in
holding that appellants were not bona fide
purchasers for valuable consideration ?
2. Whether the Appellate Court was justified in
reversing the finding recorded by trial Court on issue
No.1 ?
7. I have heard Mr.S.N. Dhanagare, learned counsel for the
appellants and Mr.L.A.Mohta, learned counsel for the respondent
Nos.1 and legal representatives of Respondent No.2, (2-A) to
(2-C) and Ku.U.R. Tanna, learned counsel for the legal
representatives of Respondent No.3, (3-A) and (3-C). None
appeared for remaining respondents though duly served.
8. With the assistance of Mr.S.N. Dhanagare, Mr.L.A.Mohta
and Ku. U.R. Tanna, I have carefully gone through the paper book of
the appeal and also the record of the trial Court.
9. Learned counsel for the appellants has submitted that the
first appellate Court has, without considering the evidence and
without taking into account the findings of facts recorded by the trial
Court which were based upon the proper appreciation of evidence
available on record, has reversed the findings of the trial Court and
partly decreed the suit for possession of the suit lands except the
land bearing Survey No.108/2. He has invited my attention to
evidence on record to point out some of the established material
facts which together go to show that sale-deed dated 04.04.1972
(Exhibit-44) was nominal and appellants were bonafide purchasers
for value. These are: (i) at the time of execution of Exhibit-44 saledeed,
the respondent Nos.1 and 2 were minors and did not do
anything to earn, (ii) there is no pleading and no evidence adduced
by the respondent Nos.1 and 2 showing as to how the consideration
of Rs.2,000/- for purchasing the suit lands, vide Exhibit-44, was paid
and who had arranged for the consideration, (iii) the possession of
the suit lands was not with the respondent Nos.1 and 2 and that
mutation entry in the revenue record showing the respondent Nos.1
and 2 as owners (vide Exhibit-45) was cancelled by another
mutation entry (vide Exhibit-77) because as per the revenue record,
the respondent Nos.1 and 2 were not in possession of the suit lands
and that the respondent No.3 was shown to be in possession of the
suit lands, (iv) the possession of the suit lands after alienations made
to the appellants and other respondents was also passed over by
respondent No.3 to these parties, and (v) evidence of parties clearly
showed that there was some dispute going on in respect of a ceiling
land between Datta Sansthan and respondent No.3 and that the
respondent No.3 had obtained loan of Rs.9,000/- on the suit lands,
pointing out the fact that the sale-deed (vide Exhibit-44) was only
nominal and was neither intended to be acted upon nor was actually
acted upon by the parties thereto. He thus submits that the findings
recorded by the trial Court on the basis of such evidence that the sale
transaction of dated 4.4.1972 (Exhibit-44) was not genuine and was
only a nominal transaction and on the other hand the alienations of
the suit lands made by the respondent No.3 in favour of appellants
and remaining respondents were for bona fide reasons and for
valuable considerations, could not have been disturbed by the first
appellate Court.
10. Mr. Mohta, learned counsel for the respondent Nos.1 and
2, on the other hand submits that the transaction dated 4.4.1972
evidenced by a registered document of sale-deed was genuine and
had been acted upon by the parties, as seen from the evidence
adduced by both sides. He submits that the consideration of the
sale-deed as well as mutation entry (vide Exhibit-45) have been
admitted by the appellants and the remaining respondents and,
therefore, even though the respondent Nos.3 and 4, the parents of the
respondent Nos.1 and 2 did not enter the witness box, it did not have
any adverse impact on the case of the respondent Nos.1 and 2. He
further submits that the sale-deed (vide Exhibit-44), being a
registered instrument, was a public document and in view of the
provision of Section 3 of the Transfer of Property Act, 1882 all the
subsequent purchasers of the suit lands were presumed have notice
of the same and, therefore, would not be permitted to say that they
being the bona fide purchasers for value and having no notice of the
earlier transaction, were entitled to protect their possession of the
suit lands. He further submits that except for one of the suit lands
bearing Survey No.108/2, the evidence on record has shown that no
permission has been granted by the District Judge for making of
alienations of the suit lands even though same was necessary, the
suit lands being ancestral property and at the time of those
alienations, the respondent Nos.1 and 2 being minor coparceners had
right and interest in the same. On these grounds, he has urged that
the appeal is liable to be dismissed with costs.
11. Ku.U.R. Tanna, learned counsel has adopted the
arguments so canvassed on behalf of the respondent Nos.1
and 2.
12. On going through the impugned judgment and decree as
well as evidence available on record, I find that there is great
substance in the argument so canvassed before me on behalf of
appellants and no merit in the argument canvassed on behalf of
respondent Nos.1,2 and respondent Nos.3(A) and 3(B).
13. The trial Court upon an in-depth consideration of the
evidence adduced by the rival parties recorded findings that the saledeed
dated 4.4.1972 (Exhibit-44) was nominally executed by
respondent No.3 in favour of respondent Nos.1 and 2 and that the
respondent Nos.3 and 4 had joined hands with respondent Nos.1 and
2 in bringing the suit against the appellants and remaining
respondents. Upon such consideration of evidence, the learned
judge of the trial Court also found that the alienations of the suit
lands made by the respondent Nos.3 and 4 in favour of appellants
and respondent Nos.6 and 7 were for legal necessity and, therefore,
these parties were bona fide purchasers. Accordingly, the trial Court
dismissed the suit.
14. If we go through the evidence brought on record by the
rival parties, it could be seen that the findings so recorded by the
trial Court are completely based upon the evidence available on
record and represent a view that can be logically taken from such
evidence.
15. It is an admitted fact that the suit lands have been
purchased by sons (respondent Nos.1 and 2) from father (respondent
No.3) at a time, when both sons were minors and were not earning
anything. The suit lands together measured about 14 acres and the
consideration paid for acquiring of such a large chunk of land has
been stated to be of Rs.2,000/-. Of course, inadequacy of
consideration is not a valid ground for setting aside the sale
transaction, but it does raise a suspicion that something is amiss in
the transaction. Then, the sons being minors at the time of purchase
of the suit lands, some evidence explaining as to how the
consideration was paid and what was the source of consideration
should have been tendered. There is neither any pleading made nor
evidence adduced in this regard by the respondent Nos.1 and 2 and,
therefore, a further doubt is created about the genuineness of the
transaction. There have been several other factors brought on record
through the evidence of witnesses of the appellants and respondent
Nos.5 to 7, casting doubt about genuineness of the said sale-deed
and these factors have been cumulatively considered by the trial
Court as proving the fact that the sale-deed (Exhibit-44) was only a
nominal one and was not a genuine document. These factors as seen
from the evidence of DW 1-Bhaskar-, DW 2-Rukhminibai, DW3-
Jairam, DW 4-Sadanand are as follows :
i) The evidence shows that at the relevant time i.e. on
4.4.1972, there was some dispute going on between respondent No.3
and Datta Sansthan in respect of one ceiling land and respondent
No.3 had some interest in this land. The evidence further indicates
that to avoid further complications, respondent No.3 sold out the suit
lands to his sons on 4.4.1972 nominally.
ii) There has been no challenge to the evidence of DW 1-
Bhaskar-, DW 2-Rukhminibai, DW3-Jairam and DW 4-Sadanand on
the point of dispute going on between the respondent No.3 and Datta
Sansthan in respect of ceiling land and execution of nominal saledeed
by respondent No.3 in favour of respondent Nos.1 and 2.
iii) The respondent Nos.1 and 2 did not lead any evidence
as to how did they generate funds for paying the consideration of the
sale-deed (Exhibit-44), when at the relevant time they were minors.
iv) The respondent No.3 obtained loan of Rs.9,000/- from
the land mortgaged with Bank by showing himself to be the owner
of the suit lands and on 15.4.1974, the Bank had also issued notices
for the auction purchase of field Survey Nos.150/2, 105/1, 145/2 and
108/2 situated at village Bharatpur, which were shown to be in the
name of respondent No.3. These facts proved through the evidence
of DW 6-Ajabrao, the employee of land mortgage Bank, have not
been challenged by respondent Nos.1 and 2.
v) Though Exhibit-45 is a mutation entry in the revenue
record, showing names of respondent No.1 and 2 as owners of the
suit lands, there is a subsequent mutation entry at Exhibit-77 which
effectively cancels the mutation entry, vide Exhibit-45. The
subsequent mutation entry at Exhibit-77 discloses that the names of
respondent Nos.1 and 2 have been removed from the revenue record
on the ground that the respondent No.3 is in possession of the suit
lands and it is specifically mentioned therein that he is owner of the
suit lands.
vi) The sale-deed dated 4.4.1972 was never acted upon by
the parties as subsequently by mutation entry vide Exhibit-77,
respondent No.3 has been shown in the revenue record to be the
owner of the suit lands and loan was obtained by respondent No.3
from the land mortgage Bank on 15.4.1974 over the suit lands, by
showing himself to be the owner thereof.
vii) If respondent No.3 had really intended to transfer
ownership of the suit lands to his sons, there would not have been a
subsequent mutation entry (Exhibit-77) showing him to be in
possession of the suit lands and respondent No.3 would not have
obtained any loan on the suit lands on 15.4.1974.
viii) At the time of execution of the sale-deeds of the suit
lands in favour of other defendants, (appellants and respondent Nos.
6 and 7) the respondent No.3 delivered possession of the respective
suit lands to these parties, which is a very strong circumstance
indicating that the suit lands were in possession of the respondent
No.3 at the time of alienations made by him to the said parties and
that he handed over actual possession of the respective suit lands to
them on the basis of those sale-deeds.
16. Above stated factors emerge from the evidence of above
referred witnesses of other defendants i.e. appellants and respondent
Nos. 5 to 7 and since there is neither any challenge to the said
evidence nor any doubtful circumstance having appeared in the
cross-examination of these witnesses taken by the learned counsel
for the respondent Nos.1 and 2, it has to be said that this evidence
strongly probablises the case of other defendants i.e. the appellants
and respondent Nos.5 to 7 and completely weakens the case of the
respondent Nos.1 to 4. Therefore, the conclusions drawn by the trial
Court that the sale-deed dated 4.4.1972 was a nominal document not
representing any genuine transaction of sale between the respondent
No.3 on the one hand and respondent Nos.1 and 2 on the other and
that respondent Nos.3 and 4 joined hands with respondent Nos.1 and
2 in bringing a false and frivolous suit against the appellants and
remaining respondents cannot be said to be not based upon the
evidence available on record or the result of non-consideration of
material evidence or based upon some extraneous material. The
conclusions so drawn can also not to be founded on such a view as
can never be possibly taken by application of process of reasoning
and logic in the sense it is understood by a man of prudence.
17. It seems, however, the learned District Judge turned
oblivious of the great deal of evidence glaringly showing the factors
going in favour of case of other defendants (appellants and
respondent Nos. 5 to 7) and against the case of the respondent Nos.1
and 2. The learned District Judge, while reversing the aforestated
findings of facts recorded by the trial Court gave only three reasons
namely : i) the appellants and respondent Nos.5 to 7 were not parties
to the sale-deed and had no concern with the family affairs of
respondent Nos.1 and 2 on the one hand and respondent Nos.3 and 4
on the other, ii) the appellants and other respondents had admitted in
their plaint that the consideration of Rs.2,000/- was paid to the
respondent No.3 and so it did not lie in the mouths of the appellants
and remaining respondents that the sale-deed at Exhibit-44 was a
nominal document, and iii) said sale-deed was also acted open and
the names of both respondent Nos.1 and 2 were mutated in the
record of rights. These reasons in fact showed only the half truth.
The appellants and other respondents never disputed execution of
the sale-deed for a consideration of Rs.2,000/-. What did they
dispute was the intention to transfer the ownership by submitting
that the ownership was never conveyed to respondent Nos.1 and 2,
the sale-deed being nominally executed. The appellants and the
other respondents had also brought on record subsequent mutation
entry (vide Exhibit-77) canceling the effect of the previous mutation
entry (vide Exhibit-45). These pleadings and said evidence together
with remaining evidence discussed earlier were not even cursorily
gone through by the learned District Judge and the result is there for
us to see, completely erroneous and perverse findings based upon
non-consideration of the material evidence available on record.
18. Having regard to the nature of evidence available on
record and which has been discussed at length in earlier paragraphs,
I am of the view that there is absolutely no scope for reversing the
findings recorded by the trial Court as regards the effect of sale-deed
dated 4.4.1972 (vide Exhibit-44). Accordingly, I hold that sale-deed
dated 4.4.1972 (vide Exhibit-44) being nominally executed by the
respondent No.3 in favour of respondent Nos.1 and 2 does not
represent any genuine conveyance and, therefore, respondent Nos.1
and 2 cannot be said to have become the absolute owners of the suit
lands. Consequently, I further hold that the respondent Nos.3 and 4
did have right, title and interest in the suit lands at the time when
alienations of the suit lands through various sale-deeds were made to
appellants and other respondents. The question No.2 is, therefore,
answered as in the negative.
19. The finding of the trial Court that the appellants and other
respondents were bona fide purchasers for valuable consideration
has been reversed by the learned District Judge. For such reversal,
the learned District Judge has assigned the reason of absence of any
evidence on record to show that the appellants and other respondents
had made reasonable inquiry about the marketability of the title of
respondent No.3 respect of suit lands before purchasing them. In
paragraph 13, learned District Judge states that DW 1-Bhaskar did
not utter a single word in this respect nor did DW 2-Rukhminibai
say anything about it. He also states that DW 4-Sadanand
maintained silence in this regard and only DW 3-Jairam deposed that
before purchasing the suit lands, he had made reasonable inquiry in
that respect. This evidence, in the opinion of learned District Judge,
indicated that the appellants and remaining other respondents were
not bonafide purchasers for value without notice of rights of
respondent Nos.1 and 2.
20. With due respect to the learned District Judge, I must say
that the learned District Judge has either misread the evidence or
missed some vital portions thereof. Barring DW 2-Rukhminibai, the
evidence of all other witnesses, namely, DW 1-Bhaskar, DW 3-
Jairam and DW 4-Sadanand clearly discloses that these witnesses
had made due inquiry in this respect. If DW 2-Rukhminibai had not
made any inquiry, it cannot be seen as a lapse affecting the
genuineness of the alienations of all the suit lands as after all, there
was a suit commonly brought against these parties in respect of
alienations of the suit lands made at different points of time and the
defence as well as evidence of these parties were commonly
presented. In such a case, therefore, the evidence of all witnesses is
required to be read together and when we do so by and large we find
that purchasers had made inquiries. That apart, the admission given
by DW 2-Rukhminibai that she did not make any inquiry as regards
ownership of the suit lands at the time of its purchase has to be
understood as having been given in the natural course of conduct not
adversely affecting her case in any manner. Admittedly, all the
transactions and affairs of her family were being looked after by her
husband Sakharam Sirsat and unless and until such admission came
from the mouth of Sakharam Sirsat, not much significance can be
given to the said admission of Rukhminibai. Significantly no
suggestion has been made to Rukminibai in her cross-examination
by respondent Nos. 1 and 2 that her husband did not make any
inquiry in this respect. The question of putting the appellants and
remaining respondents on a notice by virtue of Section 3 of the
Transfer of Property Act, 1882 would also not arise in this case as
the sale-deed (Exhibit-44) itself has been held to be a nominal
document not genuinely made. Then, it is nobody’s case that the
alienations of the suit lands through various sale-deeds to appellants
and other respondents were without any consideration. Therefore, I
find that the learned Judge of the trial Court has rightly held that the
alienations of the suit lands to appellants and respondent Nos.6 and
7 were valid and these parties were bona fide purchasers for valuable
consideration. The question No.1 is, therefore, answered as in the
negative.
21. Before parting with the judgment, I think it necessary to
place on record what are seen to be the established obligations of the
first appellate Court while deciding the first appeal. If the first
appellate Court agrees with the view of the trial Court, there is no
need for it to restate the effect of the evidence or reiterate the
reasons given by the trial Court and an expression of general
agreement with reasons given by the Court should suffice the
purpose as held in the case of Girijanandini Devi and others vs.
Bijendra Narain Choudhary, reported in AIR 1967 SC 1124.
However, when the findings of facts recorded by the trial Court are
to be reversed by the first appellate Court, the first appellate Court
must come into close quarters with the reasoning assigned by the
trial Court and then assigning its own reasons, it may record
different findings of fact. It must be remembered that first appeal is
a valuable right of the parties and unless restricted by law, the whole
case in the appeal is open for rehearing on questions of facts as well
as questions of law. The judgment of the first appellate Court must,
therefore, reflect its application of mind to the evidence available on
record and must show the reasons for recording the findings which
should be recorded on all the issues involved in the appeal and on
which adjudication is sought by the parties. A useful reference may
be made to the law laid down by the Hon’ble Apex Court in this
regard, in the case of Santosh Hazari vs. Purushottam Tiwari
(Dead) by Lrs., reported in AIR 2001 SC 965. These are the duties
of the appellate Court which must be discharged by it while deciding
first appeal.
22. In the result, the appeal deserves to be allowed with costs.
23. The appeal is allowed with costs.
24. Regular Civil Suit No.75 of 1989 stands dismissed.
25. The decree be drawn up accordingly.
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