Madhya Pradesh High Court
Bhupendra Mishra & Ors vs Smt.Ratnawali & Ors on 17 July, 2023
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
SECOND APPEAL No. 562 of 2004
BETWEEN:-
1. BHUPENDRA NATH MISHRA (DEAD)
THROUGH LRs. BRIJESH NATH MISHRA,
S/O. BHUPENDRA NATH MISHRA, AGED
ABOUT 40 YEARS, R/O. MIG-21, HOUSING
BOARD COLONY, KATANGA, JABALPUR
(MADHYA PRADESH).
2. DR. (SMT.) DIVYA CHANSORIA, AGED
ABOUT 42 YEARS, R/O. BUNGLOW NO. 25,
CANTT. JABALPUR (MADHYA PRADESH).
.....APPELLANTS
(SHRI H. K. UPADHYAY - ADVOCATE FOR APPELLANTS)
AND
1. SMT. RATNAWALI (DEAD) THROUGH HER
HUSBAND SHRI RAJENDRA GARG, AGED
ABOUT 55 YEARS, S/O. LATE SHRI
CHHEDILAL GARG, R/O. SHUKLA-JI-KI
BAGIA, VILLAGE MANSAKRA, POST &
TAHSIL - SIHORA, DISTRICT - JABALPUR
(MADHYA PRADESH)
2. MS. SOMYA GARG, AGED ABOUT 20 YEARS,
D/O. SHRI RAJENDRA GARG, R/O. SHUKLA-
JI-KI BAGIA, VILLAGE MANSAKRA, POST &
TAHSIL - SIHORA, DISTRICT - JABALPUR
(MADHYA PRADESH).
3. SMT. JYOTSAN (DEAD) THROUGH HER LRs.
SON SHRI ANSHUMAN DUBEY, S/O. SHRI
MADHUKANT DUBEY, R/O. KATRA
MOHALLA, THRKAPUR, TAHSIL AND
DISTRICT - MIRZAPUR (U.P.)
4. SMT. CHANDRALEKHA, AGED ABOUT 60
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/18/2023
12:01:14 PM
2
YEARS, W/O. RIYAZ AHMAD ANSARI, R/O.
NEAR TANGA STAND, AZAD CHOUK,
SIHORA, TAHSIL - SIHORA, DISTRICT
JABALPUR (MP).
5. STATE OF MADHYA PRADESH THROUGH
THE COLLECTOR, SIDHI (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI GIRISH SHRIVASTAVA - ADVOCATE FOR
RESPONDENT NO. 1 AND SHRI ATULANAND AWASTHY -
SENIOR ADVOCATE WITH SHRI R. S. THAKUR - ADVOCATE
FOR INTERVENOR )
SECOND APPEAL No. 982 of 2004
BETWEEN:-
1. BHUPENDRA NATH MISHRA (DEAD)
THROUGH HIS LRs. :-
2. DR. (SMT.) DIVYA CHANSORIA, AGED
ABOUT 42 YEARS, W/O. DR. ALOK
CHANSORIA, HEAD OF THE LAW
DEPARTMENT, RANI DURGAWATI VISHWA
VIDYALAYA, JABALPUR (MADHYA
PRADESH
3. BRIJESH NATH MISHRA, S/O. BHUPENDRA
NATH MISHRA, AGED ABOUT 35 YEARS,
R/O. MIG-21, HOUSING BOARD COLONY,
KATANGA, JABALPUR (MADHYA
PRADESH).
4. SMT. CHANDRALEKHA, AGED ABOUT 50
YEARS, W/O. RIYAZ AHMAD ANSARI, R/O.
NEAR TANGA STAND, AZAD CHOUK,
SIHORA, TAHSIL - SIHORA, DISTRICT
JABALPUR (MADHYA PRADESH).
.....APPELLANTS
( SHRI H. K. UPADHYAY - ADVOCATE FOR APPELLANT NO.3 )
AND
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/18/2023
12:01:14 PM
3
1. SMT. RATNAWALI (DEAD) THROUGH HER
HUSBAND SHRI RAJENDRA GARG, AGED
ABOUT 47 YEARS, S/O. LATE SHRI
CHHEDILAL RAG, R/O. MANSAKRA
PAGHERIYA, TAHSIL - SIHORA, DISTRICT-
JABALPUR (MADHYA PRADESH).
2. MS. SOMYA GARG, AGED ABOUT 20 YEARS,
D/O. SHRI RAJENDRA GARG, R/O. SHUKLA-
JI-KI BAGIA, VILLAGE MANSAKRA, POST &
TAHSIL - SIHORA, DISTRICT - JABALPUR
(MADHYA PRADESH).
3. SMT. JYOTSNA (DEAD) THROUGH HER LRs
SON SHRI ANSHUMAN DUBEY S/O. SHRI
MADHUKANT DUBEY, R/O. KATRA
MOHALLA, THRKAPUR, TAHSIL AND
DISTRICT - MIRZAPUR (UTTAR PRADESH).
.....RESPONDENTS
(SHRI GIRISH SHRIVASTAVA - ADVOCATE FOR
RESPONDENT NO. 1 AND SHRI ATULANAND AWASTHY
- SENIOR ADVOCATE WITH SHRI R. S. THAKUR -
ADVOCATE FOR INTERVENOR )
AND
SECOND APPEAL No. 985 of 2004
BETWEEN:-
1. BHUPENDRA NATH MISHRA (DEAD)
THROUGH HIS LRs. :-
2. BRIJESH NATH MISHRA S/O. BHUPENDRA
NATH MISHRA, AGED ABOUT 35 YEARS,
R/O. MIG-21, HOUSING BOARD COLONY,
KATANGA, JABALPUR (MADHYA
PRADESH).
3. DR. (SMT.) DIVYA CHANSORIA, AGED
ABOUT 42 YEARS, R/O. BUNGLOW NO. 25,
CANTT. JABALPUR (MADHYA PRADESH).
.....APPELLANTS
( SHRI H. K. UPADHYAY - ADVOCATE FOR APPELLANTS )
AND
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/18/2023
12:01:14 PM
4
1. SMT. RATNAWALI (DEAD) THROUGH HER
HUSBAND SHRI RAJENDRA GARG, AGED
ABOUT 47 YEARS, S/O. LATE SHRI
CHHEDILAL RAG, R/O. MANSAKRA
PAGHERIYA, TAHSIL - SIHORA, DISTRICT-
JABALPUR (MADHYA PRADESH).
2. MS. SOMYA GARG, AGED ABOUT 20 YEARS,
D/O. SHRI RAJENDRA GARG, R/O. SHUKLA-
JI-KI BAGIA, VILLAGE MANSAKRA, POST &
TAHSIL - SIHORA, DISTRICT - JABALPUR
(MADHYA PRADESH).
3. SMT. JYOTSNA (DEAD) THROUGH HER LRs
SON SHRI ANSHUMAN DUBEY S/O. SHRI
MADHUKANT DUBEY, R/O. KATRA
MOHALLA, THRKAPUR, TAHSIL AND
DISTRICT - MIRZAPUR (UTTAR PRADESH).
.....RESPONDENTS
(SHRI GIRISH SHRIVASTAVA - ADVOCATE FOR
RESPONDENT NO. 1 AND SHRI ATULANAND
AWASTHY - SENIOR ADVOCATE WITH SHRI R. S.
THAKUR - ADVOCATE FOR INTERVENOR )
-----------------------------------------------------------------------------------------
Reserved on : 30-06-2023
Pronounced on : 17-07-2023
-----------------------------------------------------------------------------------------
This appeal having been heard and reserved for order, coming on for
pronouncement this day, the court pronounced the following :
JUDGMENT
At the outset, learned counsel for the appellants submits that in the main case i.e. S.A. No.562/2004 the legal representatives of both the rival parties are already on record. The same be treated in the connected second appeals so that no inconvenience is caused to either of the party in future.
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 52. However, on 12.7.2023 learned counsel for the appellants has filed two applications i.e. IA No.10684/23 in SA No.982/2004 & IA No.10682/23 in SA No.985/2004 for bringing the legal representatives of the deceased appellant and respondents on record also as have already been mentioned in SA No.562/2004. Learned counsel has also pointed out that IA No.5149/2015 in SA No.982/2004 and IA No.5069/2015 in SA No.985/2004 are still pending for substitution of legal representatives of deceased respondent no.1 Smt. Ratnawali Garg on record.
3. Looking to the reasons assigned in the respective applications which are supported by affidavit, the same are allowed and learned counsel for the appellants is directed to carry out the necessary amendment in the cause title of memo of appeal during the course of the day.
4. Learned counsel for the both the parties have fairly conceded that all the aforesaid three appeals are arising out of the impugned judgment dated 14.5.2004 passed by learned lower appellate court and the suit property is also similar and common substantial questions of law are involved in all these three second appeals. However, arguments have been advanced by learned counsel for both the parties particularly in second appeal no. 562/2004. Under these circumstances, all the aforesaid three appeals are being disposed of by this common judgment. Moreover, in compliance of the order of this Court dated 30.6.2023; the Registry prepared the paper book and submitted the same on 11.07.2023 in the file.
5. Second Appeal No. 562/2004 has been filed by the appellants /defendants challenging the impugned judgment and decree dated 14.05.2004, passed by learned Sixth Additional District Judge, Jabalpur in Civil Appeal No. 41-A/2004, whereby the judgment and decree dated 31.10.2003 passed by learned Ninth Civil Judge Class-I, Jabalpur In Civil Suit No. 2-A/2003 has been Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 6 reversed. Similarly, in the light of the detailed judgment passed in Civil Appeal No.41-A/04, other civil appeal nos. 40-A/04 and 42-A/04 preferred by the respondents herein have also been allowed by the lower appellate court.
6. It is apposite to narrate the history of the case in nutshell. Initially, four civil suits were filed in the Court of Ninth Civil Judge Class- I, Jabalpur which were consolidated and decided by the trial Court by a common judgment and decree dated 31.10.2003. Civil Suit No. 2-A/2003 was filed by Bramhdatt Shukla along with Ku. Ratnawali and Smt. Jyotsna against Bhupendra Nath Mishra, Smt. Kiran Mishra, Smt. Divya Chansoriya, Brijesh Nath Mishra and two others, seeking the reliefs of Redemption of mortgage, declaration and injunction. Civil Suit No. 3-A/2003 was filed by Brijesh Nath Mishra against Smt. Ratnawali W/o Rajendra Garg and Rajendra Garg seeking declaration and injunction. Civil Suit No. 4-A/2003 was filed by Bhupendra Nath Mishra, Smt. Divya Chansoriya and Brijesh Nath Mishra against Bramhdatt Shukla, Smt. Jyotsna Dubey, Smt. Chandralekha, Smt. Ratnawali Garg and Rajendra Garg seeking relief of possession and permanent injunction and Civil Suit No. 5- A/2003 was filed by Bhupendra Nath Mishra, Smt. Divya Chansoriya and Brijesh Nath Mishra against Bramhdatt Shukla, Smt. Jyotsna Dubey, Smt. Chandralekha, Smt. Ratnawali Garg and Rajendra Garg seeking permanent injunction from interfering in the peaceful possession of the plaintiffs. All the aforesaid four civil suits were consolidated by the trial Court and decided by a common judgment and decree dated 31.10.2003.
7. Second appeal no.562/2004 has been filed by the defendants of the Civil Suit No. 2-A/2003, for the sake of clarity; the parties are hereby being referred as they have been described in the Civil Suit No. 2-A/2003.
8. Undisputed facts of the case are that during pendency of the suit, Bramhdatt Shukla had expired. He had four daughters namely Smt. Kiran Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 7 Mishra who also expired during pendency of the suit, Smt. Ratnawali, Smt. Jyotsna Dubey and Smt. Chandralekha. Bhupendra Nath Mishra is the husband of Smt. Kiran Mishra and son-in-law of late Bramhdatt Shukla.
9. The relevant facts leading to the filing of present second appeal no. 562/2004 as emerging from the case made out by the appellants are narrated in a nutshell for a better understanding and determination of the disputes between the parties are that the original plaintiffs of Civil Suit No. 2-A/2003, Bramhdatt Shukla and others along with him instituted a suit seeking the reliefs of redemption of mortgage, declaration and injunction contending inter-alia that the suit property comprising of 12.26 acres of land with a bungalow located on it was mortgaged by Bramhdatt Shukla in the year 1951 with one Chatura Bai vide sale deed dated 31.05.1951 which was redeemed by him in the name of his wife Shanti Devi in the year 1958 vide sale deed dated 06.02.1958. It is contended that Shanti Devi thereafter sold the suit land to one Sushila Devi on 25.11.1958. The bungalow was sold by Shanti Devi to one Rajaram Beohar vide sale-deed dated 01.07.1959. The said Rajaram Beohar eventually entered into transaction with Smt. Kiran Mishra the defendant no. 2 (appellant herein) and executed a sale-deed on 11.02.1981. It was contended by the plaintiffs in the suit that all the transactions from 1951 up to 1981 were only nominal sales which were executed in order to secure the money advanced by the respective purchasers by way of loan to the plaintiff no.1 Bramhdatt and thereafter to his wife Smt. Shanti Devi. It was contended that in fact, the suit property was never sold but was always mortgaged and there was an oral agreement between the plaintiff no.1 Bramhdatt and subsequently with Shanti Devi for re-conveyance of the suit property as and when the loan amount was repaid to the respective purchasers. It was also contended that inspite of all the transactions, the plaintiff Bramhdatt Shukla remained in possession of the suit property performing all necessary operations unhindered. It was contended that as with Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 8 the earlier purchasers there was an oral agreement with Smt. Kiran Mishra also to return the suit property to the plaintiffs upon the sale consideration being tendered to her. It was contended that the defendants (appellants of the present second appeal) were residing on the suit property in the capacity of licensees with the permission of the plaintiffs. It is contended that the plaintiffs offered to pay the amount of consideration to Smt. Kiran Mishra in order to redeem the mortgage, she however declined to accept the same and refused to reconvey the suit property to the plaintiffs thereby compelling them to seek legal redress.
10. The defendants (appellants in the present second appeal) appeared and filed written statement denying the plaint allegations and contended inter alia that the suit property was never mortgaged and the transactions right from 1951 onwards were an out and out sale which is evidenced from the language employed in the relevant documents of transfer of the suit property and the recitals contained therein. It was contended by the defendants that they purchased the property from Rajaram Beohar by way of a duly registered sale deed dated 11.02.1981 and were placed in physical possession of the suit property by the seller. Name of Rajaram Beohar was entered in the revenue as well as municipal records in respect of the suit lands and bungalow which was later-on substituted by the name of Smt. Kiran Mishra. It was also contended that after acquiring the suit property a rent note was executed between Rajaram Beohar and Smt. Shanti Devi in respect of the suit property. On account of non- payment of rent by Shanti Devi, Civil suit No28-A/1963 (Rajaram Beohar vs. Smt. Shanti Devi) was filed by Rajaram Beohar in the court of Civil Judge Class-I for eviction and arrears of rent. Written statement was filed by Shanti Devi denying the ownership and title of Rajaram Beohar on the ground that he was not the owner of the suit property as it was only mortgaged with him. On the basis of pleadings in the written statement, Smt. Shanti Devi denied the existence of owner / landlord and tenant relationship between her and Rajaram Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 9 Beohar. After filing written statement, Smt. Shanti Devi remained ex-parte. Issue was framed by the court in order to determine the status of the parties which became necessary for the adjudication of the suit and after taking into account all relevant considerations, Rajaram Beohar was held to be the owner and landlord of the suit property which is the same as in the present suit. The plaintiffs are the legal heirs and successors in title of Smt. Shanti Devi and the defendant derived their title from Rajaram Beohar. The suit was decreed on 18.09.1964, directing eviction of Smt. Shanti Devi. Neither any steps were taken by Smt. Shanti Devi to get the ex-parte decree set aside nor was any appeal preferred by her against the judgment and decree passed against her. The judgment and decree thus assumed finality. It was contended that the issue of title having been specifically determined in earlier suit proceedings, the present suit filed by the plaintiffs is barred by the principle of res judicata under section 11 of the Code of Civil Procedure, 1908 and the plaintiffs cannot seek to re- agitate the question of title which has assumed finality. It was contended by the defendants that in view of section 59 of the Transfer of property Act, 1882, the plea of oral mortgage was not tenable without there being a written and registered deed. Also that suit for the relief of declaration simplicitor without seeking the relief of possession was not maintainable in view of the provisions of Section 34 and 38 of the Specific relief Act, 1963. Based on contentions made in the written statement, the defendants sought dismissal of the civil suit filed by the plaintiffs.
11. On the basis of the rival contentions advanced by the parties, as many as twenty issues were framed by the trial court, who after examining the documentary and oral evidence adduced by rival sides, particularly the deeds of transfer of the suit property as were executed from time to time, rejected the plea of oral mortgage and on the basis of the tone and tenor of the deeds of transfer of title, the language employed therein and intention of the parties Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 10 which could be gathered from them, held all the transactions from 1951 up to 1981 to be transactions of sale. The Civil Suit No. 2-A/2003 filed by the plaintiffs Bramahadutt was dismissed and Civil Suit No. 4-A/2003 and 5- A/2003 filed by the defendants namely Bhupendra Nath Mishra, Brijesh Nath Mishra and Smt. Kiran Mishra were decreed vide judgment and decree dated 31.10.2003 directing the eviction of the plaintiffs from the suit premises and restraining them from interfering with the peaceful possession of the defendants/present appellants.
12. An appeal was preferred against the aforesaid judgment and decree dated 31.10.2003 vide Civil Appeal No.41-A/2004 wherein the First Appellate Court arrived at a contrary finding and held all the transactions from 1951 till 1981 to be nominal sales. On the basis of the continuous possession of the plaintiffs as deposed by the witnesses examined by the plaintiffs, the First Appellate Court held all the transactions to be mortgaged and on that basis reversed the judgment and decree of the trial court dated 31.10.2003.
13. The appellants being aggrieved by the judgment and decree passed in Civil Appeal No. 41-A/2004 on 14.05.2004 by the First Appellate Court have preferred the Second Appeal No. 562/2004 which was admitted on 20.02.2020 on the following Substantial Questions of Law :-
(1) Whether the Appellate Court was justified in reversing the Decree of the Trial Court by inventing a plea of nominal transaction, which was neither foundation of the suit not anybody's case?
(2) Whether the Appellate Court could hold that all the transactions were nominal transaction, when none of them were challenged by the Respondents Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 11 within a period of limitation as prescribed under law?
(3) Whether the Appellate Court could decree the suit, when the plea of oral mortgage was not maintainable under law as provided under section 59 of the Transfer of Property Act?
(4) Whether the Appellate Court was justified in holding that the suit was not barred on the principle of res-judicata?
14. Learned counsel for the appellants submits that the lower appellate court has committed grave error in law and fact while reversing the judgment and decree of the trial court by relying solely on the plea of nominal transaction only on the basis of the oral evidence adduced by the plaintiffs and its witnesses. It was contended that it is settled law that oral evidence cannot substitute documentary evidence which is available in abundance in the present case. It was also submitted that the plea of oral mortgage advanced by the plaintiffs is not permissible in law and is hit by Section 59 of The Transfer of Property Act, 1882 which provides that mortgage of immovable property worth more than Rupees 100 can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Burden was upon the plaintiffs to prove the sale transactions from 1951 to 1981 to be mortgage in the garb of nominal sale by producing a mortgage deed executed in accordance with law or from any recital in the sale deeds as were executed from time to time in respect of the suit property. Learned counsel for the appellants also asserted that the plea of mortgage was further hit by the Proviso to Section 58 of the Act (supra) inasmuch as none of the sale deeds from 1951 till 1981 contained any recital/condition from which the intention of the parties to enter Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 12 into a mortgage transaction could be gathered. It was submitted that in view of the clear and unambiguous language used in the deeds of transfer beyond any doubt reflect intention of the parties to perform a transaction of sale and not of mortgage. Therefore in the absence of any registered deed of mortgage and in the absence of any condition in the sale document expressing intention of the parties to enter into a transaction of mortgage and further there being no witness to establish the execution of oral mortgage, learned First Appellate Court committed serious error in interfering with well-reasoned judgment and decree passed by the learned trial Court. Learned counsel for the appellants also invited attention of this Court to Section 11 of the Code of Civil Procedure, 1908 while referring to the judgment and decree in Civil Suit No. 28-A/1963 and contended that the issue of tile and ownership of the suit property having been determined in the said proceedings, the same has attained finality and the plaintiffs are precluded from re-agitating the issue of title all over again thereby unsettling a settled state of affairs thereby also creating multiplicity of litigation. It was submitted that the possession of the plaintiffs, if any, over some part of the suit property was rendered unlawful and in the nature of encroachers post the judgment and decree in the civil suit filed by Rajaram Beohar (supra). It was thus submitted that in the absence of any evidence admissible in law, the lower appellate Court erred gravely in entertaining the plea of nominal sale and on that basis overturning the well-reasoned and lawful judgment and decree of the trial Court. Hence, prayer is made to allow all the aforesaid three second appeals.
15. Per contra, learned counsel for the respondent/plaintiff Ratnawali (since died and represented through legal representatives) while supporting the judgment and decree passed by the First Appellate Court submitted that all the transactions of the suit property right since 1951 up to 1981 are only transactions of mortgage in the garb of nominal sales. While referring to various municipal tax receipts in the name of Bramhdatt Shukla and the deposition of Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 13 witnesses, he submits that despite all transactions, possession of the property always remained with the plaintiffs which itself is sufficient proof of the fact that the suit property was only mortgaged and that all sales were in fact nominal only. Learned counsel has also drawn the attention of this Court towards Exhibit P/42 dated 01.07.1959 which is a document executed by Rajaram Beohar for re- conveyance of the suit property in the event of an amount of Rupees 7940/- being paid to him by 01.07.1960. Heavy reliance is placed by him on the reasoning adopted by the First Appellate Court in the impugned judgment and decree while contending that oral mortgage is permissible, Section 59 of the Transfer of Property Act is not applicable in the instant case and that in view of the facts and circumstances of the case, the learned Appellate Court has rightly held all the sale transactions commencing from 1951 to be nominal. Learned counsel for the Respondent No.3 Smt. Chandralekha supported the case of the plaintiffs. Contending that the title of Rajaram Beohar was that of a mortgagor. He submits that the seller cannot pass on a better title than his own. Hence, prayer is made to dismiss all these three second appeals.
16. I have heard learned counsel for the parties at great length and perused the record and I have given my bestowed considerations to the submissions made by learned counsel for both the rival parties.
17. Prima facie it is evident from the evidence of Bramhdatt Shukla that all the time property in question was sold / purchased through registered sale deed dated 11.2.1981 vide Ex.P/1; dated 31.5.1951 vide Ex.P/2 and Ex.P/3 etc. This witness Bramhdatt Shukla has also stated in para 9 of his evidence that at the instance of this witness, the land-in-question was recorded in the name of Smt. Kiran Mishra by Rajaram Beohar. This witness has also admitted that since the money was given by Bhupendra Nath Mishra to Rajaram Beohar, therefore, the land was got recorded in the name of Smt. Kiran Mishra W/o. Bhupendra Nath Mishra. However, on account of his death, his cross-
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 14examination could not be done. Chaturabai also deposed that the land was purchased / sold through registered sale deed. From the evidence of star witness Smt. Ratnawali it is evident that she is a hearsay witness. She deposed all the facts on the basis of the information alleged to have been supplied by her father i.e. Bramhdatt Shukla. This witness also admits that she has not read over Ex.P/2 and she was also not inclined to go through the document Ex.P/2. However, she vehemently stated that the suit property was always in her possession and late Bramhdatt Shula was also in possession of the disputed property during his life time. On perusal of Ex.P/2 it is crystal clear that the respondents herein after sale of the property were never in possession over the disputed property. According to Ex.P/2 dated 31.5.1951, Bramhdatt Shukla sold the property to Chaturabai and also handed over the possession to Chaturabai. Moreover, respondents herein have failed to produce any document with regard to the agreement alleged to have been written by Chaturabai in favour of Bramhdatt Shukla.
Regarding the Substantial Question of Law No. 1.
18. From a perusal of the pleadings set out in the plaint it transpires that the suit property has been sold as many as five times between the years 1951 and 1981 within a span of thirty years approximately. The plaintiffs have contended that that all the sales were only nominal and that the real nature of transaction was in fact mortgage which was entered into between the parties by way of an oral agreement. The learned trial Court while dealing with this contention has examined the various sale deeds which were executed from time to time and after taking into account the statement of witnesses and other documents produced by the plaintiffs has held in accordance with the well settled rule that the nature of a document is to be gathered from the language used in it and from the intention of the parties expressed therein. After examining the initial sale deed executed on 31.05.1951 and the testimony of Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 15 Smt. Ratnawali the learned court has opined that the language used in the said document as also the intention of the parties as can be gathered from it led to the conclusion that it was not a transaction of mortgage but of sale. It was observed by the learned trial Court that the plaintiffs could not establish their plea of mortgage by producing any agreement to such effect neither any witness was examined by them to which could establish their plea of oral mortgage.
19. It would be further relevant to refer to the provision of Law as enumerated in Section 58 (c), which is reproduced hereunder:-
58. "Mortgage", "mortgagor", "mortgagee", "mortgage-
money" and "mortgaged" defined. (a)A mortgage is the transfer-----xxx-----is called a mortgage-deed.
(b) simple mortgage -----xxx-----.
(c) Mortgage by conditional sale- Where, the mortgagor ostensibly sells the mortgaged property-
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 16
20. A perusal of the proviso appended to section 58 reproduced above clearly establishes that the intention of the parties to enter into a transaction of mortgage must be incorporated / embodied in the document itself which effects or purports to affect the sale. In the absence of any such condition or recital in the sale deeds from 1951 to 1981 renders the transaction an out and out sale which has been correctly held so by the learned trial Court to be transactions of sale and not a mortgage. It has been held by the Apex court "that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of re-transfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage", in the case of Bishwanath Prasad Singh vs Rajendra Prasad & Anr : (2006) 4 SCC 432 in para 27, 28 and the concurring judgment at para 46 as under :
"27. Section 58 (c) of the Transfer of Property Act, 1882 defines mortgage by conditional sale in the following terms:
"(c) Mortgage by conditional sale.- Where, the mortgagor ostensibly sells the mortgaged property-on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller: the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale :
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to affect the sale."
28. A bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of re-transfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage. It is not a partial transfer. By Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 17 reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser, and such a personal right would be lost, unless the same is exercised within the stipulated time and
46. Going by Section 58 (c) of the Transfer of Property Act, it is clear that for an ostensible sale deed to be construed as a mortgage by conditional sale, the condition that on repayment of the consideration by the seller the buyer shall transfer the property to the seller is embodied in the document which effects or purports to effect the same. It has so been clarified by this Court also in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Anr. [1955 (1) SCR 174] by stating, "If the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not." Therefore, it is clear that what was involved in this case was the sale followed by a contemporaneous agreement for re-conveyance of the property. Such an agreement to reconvey is an option contact and the right has to be exercised within the period of limitation provided there-for. It has also been held that in such an agreement for re-conveyance, time is of the essence of the contract. The plaintiffs not having sued within time for re-
conveyance, it would not be open to them to seek a declaration that the transaction of sale entered into by them construed in the light of the separate agreement for re-conveyance executed by the purchaser, should be declared to be a mortgage. Such a suit would also be hit by Section 91 of the Evidence Act, subject to the exceptions contained in Section 92 of that Act.
In Uma Bai & another Vs Neelkanth Dhondiba Chavan (dead) by L.R's and others (2005) 6 SCC 243 the Supreme Court has held that there is distinction between mortgage by conditional sale and a sale with a condition of repurchase. The aforesaid proposition has been laid down by the apex court in para 21 as under :
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 18"21. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to Section 58(c), however, states that if the condition for re-transfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. [See Pandit Chunchun Jha vs. Sheikh Ebadat Ali and Another (1955) 1 SCR 174, Shri Bhaskar Waman Joshi and Others vs. Shri Narayan Rambilas Agarwal (deceased) and Others (1960) 2 SCR 117], K. Simrathmull vs. Nanjalingiah Gowder, AIR 1963 SC 1182; Mushir Mohammed Khan (supra); and Tamboli Ramanlal Motilal (supra)],"
In Tamboli Ramanlal Motilal (dead) by L.Rs, Appellants v. Ghanchi ChimanlalKeshavlal (dead) through L.Rs and another, Respondents (AIR 1992 SC 1236 ) it has been held that attendant circumstances can be looked into only to gather intention. Such an intention if explicitly expressed in the document itself, there is no scope for looking into attendant circumstances. The same has also been reiterated in Raj Kishore (dead) by L.Rs v. Prem Singh and Ors. (AIR 2011 SC 382 ). The learned appellate Court thus fell in error in not appreciating the law correctly by treating all sale transactions from 1951 onwards as nominal sales.
Thus, Substantial question of law No.1 is decided in favour of the appellants and against the respondents.
Regarding the Substantial Question of Law No. 2.Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 19
21. A perusal of the plaint reveals that there is no challenge by the plaintiffs to the sale transactions of either 1951, 1958 or 1959 nor any relief in this regard has been sought by the plaintiffs. The plaintiffs also did not seek any relief of declaration to the effect that the sale transactions from 1951 to 1959 were nominal and in essence a mortgage. However the First Appellate Court travelled beyond the reliefs sought by the plaintiffs and against all settled law proceeded to declare the sale deeds right from 1951 to 1959 as nominal sales even though a suit for claiming such a relief was grossly barred by time. It is further evident from the record that the plaintiffs had full knowledge of the suit property being sold by Late Rajaram Beohar to Smt. Kiran Mishra in the year 1981. Despite this, no suit was filed by the plaintiffs for declaration within the period of three years prescribed under section 58 of the limitation Act, 1963. The declaratory suit against the sale deed executed in favour of Smt. Kiran Mishra in the year 1988 was clearly barred by limitation and the learned appellate Court committed grave error in holding all previous transactions from 1951 to 1959 as nominal while dealing with the sale executed in favour of Smt. Kiran Mishra in the year 1981. Law is settled that right to sue accrues when the right in respect of which the declaration is first brought to the knowledge of the plaintiffs and successive violations do not give a fresh cause of action. In the present case the plaintiffs being the privies of Shanti Devi and the appellants those of Rajaram Beohar, time began to run from the date of passing of judgment and decree in Civil Suit No. 28-A/1963 on 18.09.1964. The Plaintiffs although had full knowledge of the said judgment and decree did not take recourse to any legal proceedings within the prescribed period of limitation. The proceedings initiated by the plaintiffs/respondents being hopelessly barred by time and hence not maintainable. It is held by the Apex court that once limitation starts running, until its running of limitation has been stopped by an order of the competent civil court or any other competent authority, it cannot stop, in the case of The Secretary, Ministry Of Works & Housing Govt. of Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 20 India & Ors. Vs. Shri Mohinder Singh Jagdev & amp; Ors : (1996) 6 SCC 229 in para 7 which is quoted hereunder :
" 7. The crucial question is: whether the suit is barred by limitation? Section 3 of the Limitation Act, 1963 [for short, the "act";] postulates that the limitation can be pleaded. If any proceedings have been laid after the expiry of the period of limitation, the court is bound to take note thereof and grant appropriate relief and has to dismiss the suit, if it is barred by limitation. In this case, the relief in the plaint, as stated earlier, is one of declaration. The declaration is clearly governed by Article 58 of the Schedule to the Act which envisages that to obtain ";any other"; declaration the limitation of three years begins to run from the period when the right to sue "first accrues";. The right to sue had first accrued to the respondent on September 10, 1957 when the respondent's services came to be terminated. Once limitation starts running, until its running of limitation has been stopped by an order of the competent civil court or any other competent authority, it cannot stop. On expiry of three years from the date of dismissal of the respondent from service, the respondent had lost his right to sue for the above declaration."
The substantial question of law no.2 is thus answered in favour of the appellants and against the respondents.
Regarding the Substantial Question of Law No.3.
22. It is seen from the record that the plaintiffs advanced a plea of nominal sale. In view of the said plea, to establish the creation of mortgage, Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 21 burden rested on the plaintiffs to adduce credible material evidence so as to sustain the aforesaid plea. Perusal of the record however reveals that the plaintiffs did not produce any documentary evidence in the form of a contemporaneous agreement for reconveyance of the suit property in order to sustain and substantiate the plea of mortgage even despite the bar created by the Proviso to Section 58 of the Transfer of Property Act, 1882 (supra). The plea of oral mortgage also could not be established by the plaintiffs as they also failed to examine any witness to the purported nominal sale deeds. The learned first appellate Court thus fell in serious error in relying solely on hearsay evidence of Smt. Ratnawali and other plaintiff witnesses testifying to the otherwise unlawful presence of the plaintiffs on the suit property. More so, when the possession of the plaintiff's was illegal after passing of decree of eviction in 1964. It was only from 1981 that the possession of the plaintiffs became permissive as the daughter (Smt. Kiran Mishra defendant ), who purchased the property in 1981 allowed the plaintiffs to remain in portion of suit property because of the precarious condition of the plaintiff no. 1 father and plaintiff no.2 sister. The learned First appellate Court also fell in serious error of law while entertaining the legally unsustainable plea of oral mortgage and on that basis decreeing the suit of the plaintiffs.
23. In the above context reference may be had to Section 59 of the Transfer of Property Act, 1882 which reads as under :
"59 Where the principal money secured is Rs. 100/- or upwards, a mortgage other than a mortgage by deposit of title deeds can be affected only by a registered instrument signed by the mortgager and attested by at least two witnesses.Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 22
Where the principal money secured is less than Rs. 100/- a mortgage may be affected either by registered instrument signed and attested as aforesaid or (except in the case of simple mortgage) by delivery of property."
It is held in the case of I.T. Krishnaswami Ayyangar v.
Chevulukamalamma (AIR 1941 PC 90 at 92) that where the statute requires a transfer to be made in a particular manner, it can be made only in the way pointed out by the statute. In the case of Ma Kyl v. Maungthon (AIR 1935 Rang. 230 (F.B) it has been laid down that in an Oral mortgage in a case where the sum secured is 100 Rupees or upwards is invalid and conveys no interest. Further in the case of Ma Htwe v. Maung Lun (AIR 1917 Low Bur. 128 (F.B) at pg. 129) that no evidence is admissible to prove such a mortgage. Thus, it is clear from Section 59 of the Transfer of Properties Act, that there can be no oral mortgage of the property, if the principal money secured is more than Rs. 100/-.
The substantial question of law no.3 is thus answered in favour of the appellants and against the respondents.
Regarding the Substantial Question of Law No.4.
24. The question of the judgment and decree in Civil Suit No.28- A/1963 acting as res judicata in the suit filed by the plaintiffs. Section 11 of the Code of Civil Procedure, 1908 is amply clear which specifically bars the trial of any suit or issue which has been directly and substantially in issue in a former suit between the same parties or between parties/privies under whom they or any of them claim, litigating under the same title in a Court of competent jurisdiction. This aspect of law has been dealt with in the case of Attar Bai W/o Ratan Singh Appellant v. Mishrilalsa son of Siwasa and other, AIR 1966 Madhya Pradesh 318, paras 17 & 18, this High Court has held in para 17 and 18 as under :
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 23" 17. It is significant to note that in the instant case, the decree is not merely declaratory creating a charge but is an executable decree under which the charge can be enforced by getting the property charged sold. As the decree contains the direction with regard to sale of the property, it cannot be urged that it was binding only against the judgment-debtor, Nawal Singh, but not against his privies including the purchaser for value without notice.
18. The binding nature of judgment or decree can be considered from three aspects. In the first place, it may be considered as a decision on a matter which was directly and specifically in issue in the suit between the parties. The decision of such an issue is conclusive in a second action between the same parties or their representative-in-interest who has claimed under the same title. This question has been dealt at length in Section 11 of the Code of Civil Procedure. Secondly, it may be that former proceedings on the same cause of action by the same plaintiff resulted in defendant's favour. The second proceeding on the same cause of action is barred by reason of the previous judgment. This question has been dealt with under O. 2, R. 2 of the Code of Civil Procedure. Lastly, a decree is always binding on the judgment-debtor and he cannot challenge its correctness in execution. It is well settled that in all these three cases, the judgment is binding not only against the judgment-debtor but also against his privies. It has been explained in AIR 1951 AIL 141 (FB), (sup. rat), that the privies are of three classes--(i) privies in blood, as ancestors and heirs, (ii) privies in law, as executor or official receiver, in bankruptcy and (iii) privies in Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 24 estate as testator and revisee, vendor and purchaser, lessor and lessee,--. There cannot be any doubt that in the present case, the plaintiff was a privy in estate."
In Ishwardas Appellant v. The State of M.P and others Respondents (AIR 1979 SC 551 para 6, Sulochana Amma v.
Narayanan Nair (1994) 2 SCC 14 para 5 and Sajjadnashin Sayed MD. B.E EDR (D) By LRS. (2000) 3 SCC 350 paras 18 & 19. Explanation VIII appended to section 11 also bars the raising of such issues which have been heard and finally decided even by a Court of limited jurisdiction if the Court is competent to decide such issue. It is a matter of record that the Court which passed the judgment and decree in the civil Suit No. 28-A/1963 was a regular Civil Court which was competent to try and decide a regular suit for title also. In the aforesaid suit issue of title having arisen for determination and decision of the suit itself, the learned Court framed such issue and decided the same holding Rajaram Beohar to be the owner and landlord and thus decreed the suit in his favour and against Shanti Devi the predecessors in title of the appellants and respondents respectively.
Thus in view of the bar created by Section 11 (supra) the plaintiffs in Civil Suit No. 2-A/2003 is precluded from again re-agitating the question of title. The substantial question of law no.4 is thus answered in favour of the appellants and against the respondents.
25. On the fulcrum of the aforesaid discussion, this Court is of the considered opinion that learned lower Appellate Court has passed the impugned judgment and decree beyond documentary evidence and lower Appellate Court Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM 25 has also failed to appreciate the material evidence in right perspective and the impugned judgment is based on surmises and conjecture.
26. Resultantly, Second Appeal No. 562/2004 is hereby allowed. The impugned judgment and decree of the first appellate Court passed in Civil Appeal No. 41-A/2004 dated 14.05.2004, is hereby set aside, meaning thereby, the judgment and decree passed by the trial Court in Civil Suit No.2-A/2003 dated 31.10.2003 is hereby restored.
27. This court has no hesitation that in the light of the detailed judgment passed in SA No.562/2004, connected SA No.982/2004 and SA No.985/2004 are also allowed and the impugned judgment and decree passed by learned lower appellate court in CA No.42-A/04 and CA No.40A/04 vide dated 14.5.2004 are also set-aside, meaning thereby, the judgment of the trial court with regard to the suit filed by the appellants i.e. 4-A/2003 and 5A/2003 dated 31.10.2003 are hereby restored.
28. Interim order, if any passed earlier in all three appeals, stands vacated. Decree be drawn accordingly. Parties shall bear their own costs.
29. A copy of this judgment along with record be sent back to the courts below for information and its compliance.
(ARUN KUMAR SHARMA) JUDGE JP/-
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/18/2023 12:01:14 PM