Bombay High Court
Janardan S/O Kisanaji Parbat vs Sau. Rekha W/O Marotrao Parbat And 2 ... on 29 September, 2020
Author: M.G.Giratkar
Bench: M.G.Giratkar
1 sa400.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.400 OF 2012
Janardan s/o. Kisanaji Parbat,
Aged 32 years, Occ. Cultivator,
r/o. Wagholi, Tahsil Hinganghat,
District Wardha. .......... APPELLANT
// VERSUS //
1.Sau.Rekha w/o. Marotrao Parbat,
Aged 47 years, Occ. Cultivator.
2.Bharat s/o. Marotrao Parbat,
Aged 26 years, Occ. Cultivator.
3.Marotrao s/o. Keshav Parbat,
Aged 53 years, Occ. Cultivator.
All r/o. Wagholi, Tahsil
Hinganghat, District Wardha. .......... RESPONDENTS
::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
2 sa400.12.odt
____________________________________________________________
Mr.S.P.Hedaoo, Advocate for the Appellant.
Mr.Rahul Bhangde, Advocate for Respondent Nos.1 to 3.
____________________________________________________________
***************
Date of reserving the Judgment : 14.9.2020.
Date of pronouncement of the Judgment : 29.9.2020.
***************
CORAM : M.G.GIRATKAR, JJ.
JUDGMENT :
1. This Second Appeal is filed by the Original Plaintiff/appellant herein, who had filed Regular Civil Suit No.73 of 2007. The Civil Suit came to be dismissed on 28 th March, 2010. Regular Civil Appeal No.274 of 2010 was filed by the Original Plaintiff before the District Judge, Wardha. The said appeal is also dismissed on 20.4.2012. Hence, the present appeal is filed by the said Original Plaintiff/appellant against the concurrent findings of both the Courts below.
2. The case of plaintiff/appellant, in short, is that defendant nos. 1 and 2 are owners of field bearing Survey Nos. 171 and 172, total area 3.65 HR. of mouza Wagholi, Tq. Higanghat. Defendant nos. 1 and 2 agreed to sell 1.01 HR land ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 3 sa400.12.odt out of said land for a consideration of Rs.91,000/-. Oral agreement to that effect took place on the day of Gudi Padwa of the year 2006. The plaintiff paid earnest amount of Rs.20,000/- to the defendants. The defendants handed over possession of 1.01 HR. land out of Survey Nos. 171 and 172 to the plaintiff. The sale deed was to be executed on 3.11.2006, after payment of balance consideration. The defendants agreed to convert the said land into Class I and thereafter, sale deed was to be executed. But, till 3.10.2006, the defendants did not apply for conversion of the land. They were in need of money for the education of defendant no.2. Therefore, they obtained Rs.70,000/- from the plaintiff as a part payment of consideration and executed a registered agreement of sell on 4.10.2006 in favour of the plaintiff. Balance consideration of Rs.1,000/- was to be paid at the time of sale deed. The defendants failed to execute the sale deed. Therefore, Regular Civil Suit No.73/2007 was filed for specific performance of contract and permanent injunction against the defendants.
3. The defendants/respondents appeared and filed their Written Statement at Exh.18 and submitted that they never executed agreement of sell to the plaintiff. Father of plaintiff is money lender. The defendants were in need of money. ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
4 sa400.12.odt Therefore, they obtained hand loan of Rs.40,000/- from the father of plaintiff. The father of plaintiff got executed nominal document of sell dt.4.10.2006 towards security of loan. The said document was executed in the name of plaintiff. Due to failure of crop, the defendants could not repay the loan amount. They have submitted that they never handed over possession to the plaintiff. They are in possession of the suit field. Therefore, they prayed to dismiss the suit.
4. Learned Civil Judge (Jr.Dn.), Hinganghat framed issues. Both the parties adduced their evidence. The trial Court as well as the first Appellate Court came to the conclusion that the plaintiff failed to prove that defendants agreed to sell suit land. The evidence of plaintiff and his witnesses is contradictory. Therefore, both the Courts came to the conclusion that it was not agreement to sell, but it was the document executed towards security in respect of loan amount of Rs.40,000/-. Therefore, both the Courts recorded findings against the appellant.
5. This Court has admitted this appeal on 18 th February, 2013 on the following substantial questions of law : ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
5 sa400.12.odt
(a) Whether the courts below were right in holding that the agreement to sell dated 03.10.2006 has been proved?
(b) Whether the courts below were right in holding that the agreement dated 03.10.2006 was a nominal transaction and it was not to be acted upon particularly when the courts below have held that the execution of the said agreement is admitted by the defendants ?
6. Heard Mr.S.P.Hedaoo, learned Counsel for the appellant. He has pointed out agreement to sell (Exh.35) and submitted that it is a registered document and therefore, oral evidence to contradict contents of document is not permissible. Learned Counsel has submitted that plaintiff has paid Rs.90,000/- to the defendants. The defendants failed to execute the sale deed. It is, therefore, prayed to allow the appeal and grant decree of specific performance against the defendants. The learned Counsel has submitted that the findings recorded by the trial Court are illegal and therefore, Judgment of both the Courts below are liable to be quashed and set aside. ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
6 sa400.12.odt
7. Heard Mr.Rahul Bhangde, learned Counsel for the respondents. He has submitted that the evidence of plaintiff and his witnesses is not reliable. There is material contradiction in respect of payment of earnest money and execution of documents. There is material contradiction in respect of situation of suit field etc. Therefore, the learned trial Court has rightly come to the conclusion that the plaintiff has failed to prove his case. The learned Counsel has submitted that though document (Exh.35) is a registered document, that does not mean that oral evidence to contradict the contents cannot be permitted. He has pointed out the Judgment of this Court in the case of Vithal Saidu Lokhande .vs. Rama Mahadeo Gund (since dead) through LRS. and Others reported in 2015(2) Mh.L.J. 345. The learned Counsel has submitted that, as per the provisions of Section 92 Proviso (1) of Evidence Act, oral evidence can be adduced to contradict the documents.
8. Mr.Rahul Bhangde, learned Counsel has further submitted that this is a Second Appeal. Learned trial Court as well as the first Appellate Court recorded its' findings properly. There is no perversity or illegality in the findings recorded by both the Courts below. Therefore, it being a Second Appeal, the High Court cannot disturb the findings of both the Courts below. ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
7 sa400.12.odt In support of his submission, the learned Counsel has pointed out decision in the case of Karnataka Board of Wakf .vs. Anjuman-E-Ismail Madris-Un-Niswan reported in (1999) 6 SCC 343.
9. I have perused the evidence of plaintiff and his witnesses. The plaintiff comes before the Court with a specific case that there was agreement to sell suit land on the day of Gudi Padwa of the year 2006. On that day, Rs.20,000/- was paid by the plaintiff to the defendants. The defendants handed over possession of the suit field to him. Plaintiff's witnesses PW-1 Kawdu Bhute and PW-2 Hiraman Parbat have stated as per the evidence of plaintiff in their examination-in-chief, but there is material contradiction in respect of payment of amount of earnest money and handing over possession of the suit field to the plaintiff.
10. The plaintiff further comes with a specific case that agreement to sell took place on the day of Gudi Padwa of the year 2006, but, in the agreement (Exh.35), there is nothing about oral agreement to sell on the day of Gudi Padwa of the year 2006. On the other hand, agreement (Exh.35) shows that possession was not delivered to the plaintiff. It is specifically ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 8 sa400.12.odt mentioned in the agreement itself that possession of field would be given on the day of sale deed. This itself shows that possession of suit field was not given to the plaintiff.
11. There is material contradiction in respect of oral evidence of plaintiff and the agreement to sell (Exh.35). The plaintiff has stated in his evidence that, at the time of handing over possession on the day of Gudi Padwa, crops of Cotton and Soyabean were standing in the field. Where as witness Kawdu Bhute has stated that crops of Wheat and Gram were standing in the field. In respect of execution of document, PW-Bhute has stated that agreement to sell was reduced into writing by Attorney Mr.Made; whereas other witness Hiraman has stated that agreement to sell was written by Attorney Hingmire.
12. There is material contradiction in respect of payment of earnest money. The plaintiff has stated in his evidence that the defendants received Rs.90,000/- on 3.10.2006 and executed document (Exh.35), which was registered on 4.10.2006. The document (Exh.35) shows that Rs.90,000/- was paid to the defendants. Material contradiction is in the evidence of plaintiff itself. As per his evidence, Rs.20,000/- was paid to the defendants on the day of Gudi Padwa at the time of oral ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 9 sa400.12.odt agreement. But nothing is mentioned in the agreement to sell (Exh.35) in respect of payment of Rs.20,000/- on the day of Gudi Padwa. On the other hand, it is written in Exh.35 that Rs.90,000/- was paid to the defendants. In respect of payment of Rs.90,000/-, there is also material contradiction in the evidence of witnesses Bhute and Hiraman. Witness Bhute has stated in his evidence that earnest money of agreement to sell of Rs.90,000/- was paid to the defendants two days before registration of document. As per evidence of plaintiff, on 3.10.2006, total Rs.90,000/- was paid and document was executed. It was registered on 4.10.2006. It shows that after one day it was registered. Whereas witness Bhute has stated that, two days before registration of document, Rs.90,000/- was paid. Witness Bhute has stated in his evidence that, two days before 3.10.2006, there was an agreement between plaintiff and defendants to sell the suit property. Before that, there was no any agreement between the plaintiff and defendants. He has denied that Rs.20,000/- was paid earlier and on the day of execution of Exh.35, Rs.70,000/- was paid. He has contradicted his own evidence in his examination-in-chief. Hiraman, witness of plaintiff, has stated in his examination-in-chief that, on the day of Gudi Padwa of the year 2006, there was an agreement between the plaintiff and defendants to sell the suit property for ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 10 sa400.12.odt a consideration of Rs.91,000/-. On 3.10.2006, in his presence, Rs.70,000/- was paid to the defendants at Higanghat. In his cross-examination, he has stated that Rs.20,000/- was paid by father of plaintiff before execution of document (Exh.35). He has contradicted his evidence in respect of payment of Rs.70,000/- at Higanghat.
13. The evidence of plaintiff is contradictory to the document (Exh.35). There is material contradiction in respect of payment of earnest money to the defendants at the time of execution of document (Exh.35). Therefore, the defence of respondents that they received Rs.40,000/- as hand loan and the document was executed towards security of loan is a probable defence. Learned trial Court as well as the first Appellate Court have rightly recorded their findings holding that the plaintiff failed to prove that the defendants agreed to sell the suit land of 1 Hec 0.01 R. Though execution of agreement is admitted by defendants, but contents are not proved by plaintiff.
14. There is also material contradiction in respect of possession as pleaded by the plaintiff. The document (Exh.35) itself shows that possession would be given at the time of sale deed. Whereas it is case of plaintiff that, at the time of oral ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 11 sa400.12.odt agreement, on the day of Gudi Padwa, Rs.20,000/- was paid and possession was handed over to him. Plaintiff has stated in his evidence that,s at that time, crops of Cotton and Soyabean were standing in the field; whereas witness Bhute has stated in his cross-examination that Crops of Wheat and Gram were standing in the field. Cross-examination of Hiraman shows that, at the time of Gudi Padwa, crop of Soyabean was in the field.
15. There was measurement by the plaintiff in the year 2007 i.e. on 15.4.2007. At that time, the plaintiff was present. As per evidence of plaintiff, witnesses Bhute and Hiraman were present. Witnesses Bhute and Hiraman initially denied their presence, but later they admitted that they were present at the time of measurement. The suit land is not shown separately in the Measurement map (Exh.53). The field of plaintiff was fenced by barbed wire from all the sides. There was no separate portion carved out to show possession of plaintiff. Plaintiff has filed one document which shows that there was disputed entry in respect of possession of plaintiff. It was not confirmed by the Revenue Authority. There is no any document placed on record by the plaintiff to show that he was in possession of the suit field. Therefore, contention of plaintiff that the defendants agreed to sell the suit field and he was put in possession of the suit field is ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 12 sa400.12.odt falsified. Looking to the evidence on record, the trial Court as well as the first Appellate Court have rightly come to the conclusion and dismissed the suit.
16. In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :
" 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms :::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
13 sa400.12.odt Proviso (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
17. As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 14 sa400.12.odt existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "
18. As per the Judgment of this Court in the case of Vithal Saidu Lokhande (cited supra), parol evidence can be adduced as per Section 92 Proviso (1) of Indian Evidence Act in respect of any fact which would invalidate any document, at the instance of any party to such document or their representatives in interest.
In the present matter, the appellant failed to prove the material pleadings and contents of document (Exh.35). The defendants adduced their parol evidence to show that Exh.35 was executed only to secure the loan amount. It was not agreement to sell sale, but it was nominally executed for the security of loan amount of Rs.40,000/-. The defendants are permitted as per ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::
15 sa400.12.odt Proviso (1) of Section 92 to adduce their oral evidence. Hence, the argument advanced that Exh.35 being a registered document, oral evidence is not permissible, is not acceptable.
19. Learned Counsel for the respondents has submitted that both the Courts below recorded concurrent findings. Therefore, this Court cannot disturb the concurrent findings of the Courts below. He has pointed out decision of the Apex Court in the case of Karnataka Board of Wakf (cited supra), wherein the Apex Court has held in paras 12, 13 and 14 as under :
"12.This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 of the C.P.C. is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material-on-record."
"13. In Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392, this Court held :
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 16 sa400.12.odt jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
"14.In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166, this Court held :
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ...... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
20. The plaintiff himself has failed to prove his case. Pleadings and evidence are contradictory. There is nothing in respect of oral agreement as stated by plaintiff in the agreement to sell Exh.35. As per the pleadings, possession was handed over to him on the day of Gudi Padwa of the year 2006. But the document (Exh.35) itself shows that possession would be given to the plaintiff at the time of sale deed. There is material contradiction in respect of payment of earnest money as stated ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 17 sa400.12.odt by the plaintiff. Evidence of plaintiff and his witnesses is not reliable. Therefore, the trial Court has rightly dismissed the suit and the appeal is also dismissed by the first Appellate Court. Both the Courts below have rightly held that agreement (Exh.35), dt.3.10.2006 was a nominal transaction and it was not to be acted upon. Though execution of Exh.35 is admitted by defendants, but contents are not proved by plaintiff. The substantial questions of law are answered accordingly. There is no substance in the appeal. The appeal is, therefore, dismissed. No order as to costs.
JUDGE [jaiswal] ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 ::: 18 sa400.12.odt ::: Uploaded on - 29/09/2020 ::: Downloaded on - 30/09/2020 07:21:16 :::