Bombay High Court
Ramesh Chudaman Bhujade, Bhandara vs Waman Jairam Yerane & 4 Others on 8 June, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
sa120.03.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.120 OF 2003
APPELLANT: Nanaji S/o Antaram Chaudhari, aged
about 53 years, Occu. Cultivator, R/o At
Post-Nilaj, Tah. Brahmapuri, District:
Chandrapur.
-VERSUS-
RESPONDENTS: 1. Indira W/o Uddhao Bode, Aged about
48 years, R/o Kitadi, Tah. Armori, Distt.
Gadchiroli.
2. Vithoba S/o Sakharam Bharre, aged
about 54 years,
3. Narayan S/o Sakharam Bharre, aged
about 49 years,
Nos. 2 and 3 are R/o Nilaj, Tah.
Brahmapuri, Dist. Chandrapur.
Shri Rohit Joshi, Advocate for the appellant.
Shri S. D. Sirpurkar, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 08
th JUNE, 2017.
ORAL JUDGMENT :
1. The appellant, who is the original plaintiff, has filed this appeal under Section 100 of the Code of Civil Procedure as he is aggrieved by the judgment of the appellate Court dated 24-8-2001 by which said appeal preferred by the respondents came to be allowed and the decree passed by the trial Court came ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:21 ::: sa120.03.odt 2/7 to be set aside.
2. It is the case of the appellant that the respondents were the owners of field Gut No.449 situated at village Kharkada. This agricultural land was mortgaged with one Sadhu Bagmare. According to the appellant, it was agreed that after the mortgage amount was repaid, the suit property would be reconveyed to the respondents. In that regard, the father of the respondents agreed to execute an agreement of sale in respect of one acre of land in favour of the appellant's father. Accordingly, on 17-7-1969, an agreement was entered into in that regard. Thereafter on 17-9-1971, 25 decimals from the aforesaid land was also agreed to be sold to the appellant's father. A third agreement dated 1-12-1975 with regard to 70 decimals land was again entered into between the parties. Finally, on 15-10-1976 another agreement with regard to the land admeasuring 1 acre .04 Gunthas also came to be executed in favour of the appellant's father. Thus, by virtue of these four agreements, entire Gut No.449 admeasuring 1 Hectare 21R was agreed to be sold for total consideration of Rs.11,330/-. The respondent No.1 - Sakharam had initially filed a suit against Sadhu Bagmare for execution of re-conveyance deed and the suit was compromised on 27-9-1983. As the title was re- conveyed, the appellant filed suit for specific performance of the ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:21 ::: sa120.03.odt 3/7 aforesaid agreement and sought possession of the suit property.
3. In the written statement filed on behalf of the respondent, the execution of the aforesaid agreements was admitted, but according to them, these agreements were entered into as being loan agreements. The suit was accordingly opposed and the stand was taken that the appellant was not entitled for any relief whatsoever.
4. Before the trial Court, the appellant examined various witnesses. The respondents also examined witnesses in support of their defence. The trial Court on consideration of the entire evidence on record found that the appellant had proved that the respondents had agreed to sell the suit land to him. A finding was recorded that the transactions between the parties were not loan transactions. The trial Court accordingly decreed the suit. The appellate Court affirmed the finding of the trial Court that the transactions between the parties were not loan transactions. It, however, held that that the agreement dated 15-10-1976 had not been proved and, therefore, the appellant was not entitled for relief of specific performance. On that basis, the appeal was allowed and the decree passed by the trial Court was set aside.
5. The appeal was admitted on the following substantial question of law:
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Whether the Agreement dated 15-10- 1976 can be said to be not legally proved; particularly when the execution and the writing of the Agreement is not disputed and the defence put- up by the Respondents about the loan transaction has been negatived by both the Courts below?
6. Shri Rohit Joshi, learned Counsel for the appellant submitted that the appellate Court was not justified in holding that the agreement dated 15-10-1976 was not duly proved. He referred to the written statement filed on behalf of the respondents and especially the specific pleadings in which execution of various agreements was referred to in the background of loan transactions between the parties. He submitted that the appellant after examining himself had proved the agreement at Exhibit-98. The appellate Court having disbelieved the theory of loan transaction, it was not open for the appellate Court to have held the said agreement to be not proved. He, therefore, submitted that the suit was rightly decreed by the trial Court and this decree deserves to be restored.
7. Shri S. D. Sirpurkar, learned Counsel for the respondents supported the impugned judgment. According to him, the appellate Court was justified in holding that the agreement at ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:21 ::: sa120.03.odt 5/7 Exhibit-98 was not duly proved inasmuch as the attesting witnesses to the same were not examined. He submitted that even if the theory of loan transaction was disbelieved, it was necessary to prove the agreement dated 15-10-1976 in a proper manner. He, therefore, submitted that the appeal was liable to be dismissed.
8. I have heard the learned Counsel for the parties at length and I have also gone through the evidence on record. The trial Court while answering issue No.1 has held that the agreements at Exhibits 93,94,108 and 98 had been duly proved. It referred to the pleadings of the parties and noted that the execution of these documents had not ben seriously disputed. However, the defence that it was a loan transaction between the parties was not accepted. While answering issue No.3, a finding was recorded that this loan transaction had not been duly proved. The appellate Court in para 8 of its judgment has confirmed this finding by holding that the defence with regard to loan transaction as raised by the respondents did not appear to be probable. It can thus be seen that both the Courts have concurrently held that the documents at Exhibits 93, 94, 108 and 98 were not executed by way of a loan transaction.
9. In so far as the agreement dated 15-10-1976 Exhibit-98 is concerned, in para 8 of the written statement it was ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:21 ::: sa120.03.odt 6/7 pleaded that such document came to be executed by the father of the respondents, but by way of loan transaction. In other words, execution of the agreement was not specifically challenged, but the object behind executing the agreement was sought to be portrayed as a loan transaction. As noted above, both the Courts have not accepted this defence. In absence of any specific challenge to the execution of the document at Exhibit-98, the appellate Court was not justified in holding that the plaintiff ought to have examined witnesses to the said document. The respondent No.3 in his cross- examination has clearly admitted that on 15-10-1976, the aforesaid agreement came to be scribed. He further admitted that he had accepted Rs.200/- while executing said agreement. In the light of such evidence which is available on record, I find that the trial Court was justified in accepting the case of the appellant. The appellate Court without any justifiable cause proceeded to hold that the agreement at Exhibit-98 was not duly proved. Considering the pleadings of the parties and the evidence led by them, I do not find that the appellate Court was justified in holding so. The substantial question of law is accordingly answered by holding that the agreement dated 15-10-1976 (Exhibit-98) was duly proved.
10. In view of aforesaid, it is held that the appellate Court ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:21 ::: sa120.03.odt 7/7 was not justified in reversing the decree passed by the trial Court especially when it had already recorded a finding that the transaction between the parties was not a loan transaction. Accordingly, the judgment dated 24-8-2001 in Regular Civil Appeal No.93 of 1996 is set aside. The judgment and decree of the trial Court dated 26-4-1996 in Regular Civil Suit No.128 of 1983 stands restored.
11. The second appeal is allowed in aforesaid terms. No costs.
JUDGE //MULEY// ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:21 :::