Rajnandgaon, Chhattisgarh v. 1 - Hirendra Das S/o Girdharidas Bairagi Aged About 51 Years R/o Village- Khaira
Case Details
1 Digitally signed by AVANISH KUMAR PATHAK Date: 2025.03.11 17:37:00 +0530 2025:CGHC:11915 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 68 of 2020 RESERVED ON 28-2-2025 PRONOUNCED ON 11 -3-2025. 1 - Satrughan S/o Ghanshyam Das Bairagi Aged About 50 Years R/o Village- Bamhanicharbhatha, Tahsil- Chhuriya, District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Appellant/Plaintiff versus 1 - Hirendra Das S/o Girdharidas Bairagi Aged About 51 Years R/o Village- Khaira, Post- Kanharpur, Tahsil And District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 2 - State Of Chhattisgarh Through- Collector, Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Respondents/defendants : For appellant For respondent No. 1 : For respondent No. 2/State : Mr. Ravindra Sharma, Adv. Mr. Rakesh Thakur, Adv. Ms. Mandvi Bhardwaj, PL. Hon'ble Shri Justice Naresh Kumar Chandravanshi CAV JUDGMENT 1 This first appeal has been filed by the appellant/plaintiff under Section 96 of the Civil Procedure Code, 1908 (henceforth, referred to as ‘CPC’), challenging the judgment and decree dated 28-11-2019 passed by the 2nd Upper District Judge, Rajnandgaon (CG) in Civil Suit No. 35A/2015, whereby the civil suit filed by the appellant/plaintiff has been dismissed. (hereinafter, parties would be referred as per their status shown in the plaint.) 2 2 Facts of the case in brief, are that, plaintiff filed civil suit for declaration and permanent injunction stating inter alia that, he is owner of land bearing Khasra No. 331/4, area 3.25 acre, situated at village Bamhnichar Bhatha, P.H. No. 48, Post Charbhatha, Tehsil Chhuria, District Rajnandgaon (henceforth referred to as ‘suit land’). He needed Rs. 1 lakh for his domestic work, which was given by defendant No. 1 subject to condition that he will execute registered sale deed in favour of defendant No. 1. Plaintiff executed registered sale deed (Ex. P-1) dated 29-11-2005 in respect of suit land. It is further pleaded by plaintiff that, defendant No. 1 had agreed to re- transfer the suit land vide registered sale deed to be executed in his favour after return of aforesaid amount, as such, sale deed (Ex.P-1) was not an actual sale deed, rather, it was ‘mortgage by conditional sale’. In this regard, the defendant No. 1 had also executed agreement (Ex. P-2) in favour of plaintiff on same day i.e. 29-11-2005. Plaintiff has returned sum of Rs. 90,000/- and Rs. 10,000/- on 14-3-2009 and 29-1-2011 respectively to the defendant No. 1, thereafter despite repeated requests, defendant No. 1 did not execute registered sale deed in favour of plaintiff. Therefore, plaintiff filed civil suit seeking declaration that, sale deed Ex. P-1 dated 29-11-2005 was executed for security of loan, therefore, it does not confer title or right over the suit land, as such, plaintiff is having title over it. He has also sought relief of permanent injunction against defendant No. 1 restraining him from interfering in his possession over the suit land. 3 Defendant No. 1 filed written statement denying substantive pleading made by plaintiff claiming therein that, plaintiff needed money to purchase a tractor and for domestic work. Therefore, he executed registered 3 sale deed (Ex. P-1) in his favour after getting full sale consideration of Rs. 1
Legal Reasoning
lakh. Possession of suit land was also handed over to defendant No. 1. Aforesaid amount was not given to the plaintiff as a loan, rather the transaction was absolute sale of suit land, as such, plaintiff had also handed over possession over it to the defendant No. 1. Sale deed (Ex. P-1) also does not stipulate that, it has been executed to secure loan. Defendant No. 1 has also denied execution of alleged agreement (Ex. P-2) for return of suit land vide registered sale deed in favour of plaintiff, as it does not contain signature of defendant No. 1. Plaintiff has also not returned any amount to him. Defendant No. 1 has further pleaded that transaction made between plaintiff and defendant No. 1 vide registered sale deed (Ex. P-1) was an absolute sale and not ‘mortgage by conditional sale’. After execution of registered sale deed (Ex. P-1), plaintiff had handed over possession over the suit land, but after filing civil suit, plaintiff has forcefully dispossessed defendant No. 1 from it. Therefore, defendant No. 1 filed counter claim seeking relief of vacant possession over the suit land from plaintiff. 3.1 Plaintiff has filed reply to the counter claim filed by the defendant No. 1 with the pleading that, he has never handed over possession to defendant No. 1 over the suit land, rather he is always in possession, as such, there is no question of dispossession of defendant No. 1 from the suit land. No cause of action arises in favour of the defendant No. 1 for filing counter claim, hence, it be dismissed. 4 Defendant No. 2 has filed written statement with pleading that State is a formal party in the civil suit. 4 5 On the basis of pleading of both the parties, learned trial Court framed as many as 9 issues, recorded evidence adduced by the parties and
Legal Reasoning
after considering the evidence and contention of the learned counsel for the parties, it dismissed the suit filed by the plaintiff holding therein that, the sale deed (Ex. P-1) was absolute sale deed, through which, right, title and all the interest was conveyed absolutely in favour of defendant No. 1, as such, it was not ‘mortgage by conditional sale’. The plaintiff has illegally dispossessed him, therefore, plaintiff is not entitled to get any relief, rather, the trial Court accepted counter claim of defendant No.1 and directed the plaintiff to hand over possession of the suit land to him within 2 months. Being aggrieved by such judgment and decree, appellant/plaintiff has filed instant first appeal. 6 Learned counsel for the appellant/plaintiff would submit that plaintiff and defendant No. 1 are cousin brother. Since son of plaintiff was ill, therefore, to provide him treatment, plaintiff had sought money from defendant No. 1, to which he was ready subject to mortgage of suit land by executing conditional sale deed, therefore, plaintiff had executed registered sale deed (Ex. P-1) in his favour, but on the same day, i.e. on 29-11-2005, defendant No. 1 had executed Ikrarnama (Ex. P-2) in favour of plaintiff that, if plaintiff refunds Rs. 1 Lakh, then defendant No. 1 will execute registered sale deed in favour of plaintiff for return of suit land, but the expenses for such registration shall be incurred by plaintiff, which was conceded by him. Thereafter, defendant No. 1 gave him Rs. 1 Lakh as loan and plaintiff mortgaged suit land by conditional sale deed vide Ex. P-1. The area of suit land is total 3 acre 25 dismil. Ashok Kumar (D.W. 2), who is independent witness and resident of the village where suit land is situated, has stated that, 5 14 years prior to his deposition, (2-11-2019), rate of land in their village was 2 – 2½ lakhs rupees per acre, as such, in the year 2005, rate of suit land would be more than 60 thousand per acre. Even defendant No. 1 himself has admitted that, at that time, rate of land was Rs. 60,000 – 70,000/- per acre. On this count also, rate of 3.25 acre land could not be Rs. 1 lakh, to which, the suit land could be sold by the plaintiff. This fact also shows that sale deed Ex. P-1 was a nominal/sham sale deed and executed as ‘mortgage by conditional sale’. Learned counsel further submits that, if it would have been actual sale deed, then defendant No. 1 ought to have mutated the suit land in the year 2005 itself or at the earliest, but he got mutated the suit land in his name in the year 2014 vide Ex. P-3. The plaintiff is in possession over the suit land, which has never been transferred to defendant No. 1 and, therefore, defendant No. 1 has sought possession of the same, which itself shows that, possession was not transferred to the defendant No. 1. He also submitted that, learned trial Court without considering aforesaid fact, has mechanically dismissed the aforesaid suit. Hence, it is prayed that, the appeal may be allowed and decree may be granted in favour of the plaintiff by setting aside the impugned judgment and decree. 7 Per contra, learned counsel for the respondent No. 1/ defendant No. 1 would submit that, plaintiff has sold the suit land vide registered sale deed (Ex. P-1) and alleged Ikrarnama (Ex. P-2) has not been proved. There is no iota of word in sale deed (Ex. P-1) that it was executed as mortgage by conditional sale. Defendant No. 1 has specifically pleaded in his counter claim that, he was in possession of suit land till 31-7-2015, thereafter he has been forcibly removed by the plaintiff, which is also supported by witness 6 Ashok Kumar (D.W. 2). He further submits that, the impugned judgment and decree passed by the trial Court is well reasoned and based on evidence, which does not call for any interference. Learned State counsel submits that State is a formal party in this 8 case. 9 Heard learned counsel for the parties and perused the material available on record along with record of the trial Court. 10 Undisputedly, plaintiff was owner of suit land and he executed registered sale deed (Ex. P-1) on 29-11-2005 in favour of defendant No. 1 in respect of the suit land for sale consideration of Rs. 1 lakh. 11 Plaintiff Satruhan (P.W. 1) has stated in his deposition that he had needed Rs. 1 lakh, which was given by defendant No. 1 subject to condition that, he will execute registered sale deed in respect of suit land in his (defendant No. 1) favour. Therefore, he (plaintiff) had executed aforesaid registered sale deed (Ex. P-1) in favour of defendant No. 1, as such, it was not a deed of conveyance sale, rather it was a ‘mortgage by conditional sale’. He has further deposed that, on 29-11-2005 itself, defendant No. 1 had executed agreement (Ex. P-2) in his favour to the effect that, on refund of aforesaid amount i.e. Rs. 1 lakh, he (defendant No. 1) will re-transfer the suit land in his favour vide executing registered sale deed. He has further submitted that, he returned the sale amount to the defendant No. 1 in two installments i.e. Rs. 90,000/- and Rs. 10,000/- on 14-3-2009 and 29-1-2011 respectively, which was also endorsed by defendant No. 1 in the said agreement, but despite being request made by him, defendant No. 1 did not 7 re-transfer suit land and did not execute registered sale deed in his favour. 12 Dev Kumar Das Vaishnav (P.W.2) is said to be witness of registered sale deed (Ex. P-1) and alleged agreement (Ex. P-2). In his examination-in- chief submitted under Order 18 Rule 4(a) of the CPC, he has supported the case of plaintiff Satruhan Das (PW 1) , but in cross-examination, he has only supported execution of registered sale deed (Ex. P-1) and he had completely denied the fact that talk of keeping mortgage suit property had happened in front of him and alleged agreement (Ex. P-2) contains his signature. He has also admitted the suggestion that no content was written in the sale deed about mortgage of suit land. Prem Singh Yadav (P.W. 3) is a heresay witness about said transaction, therefore, his statement is of no worth in respect of said transaction. Defendant No. 1 Hirendra Das (D.W. 1) has clearly denied the statement of plaintiff that, sale deed (Ex. P-1) was executed by plaintiff as mortgage by conditional sale, rather, he stated that complete sale was made by the plaintiff after getting full sale consideration by handing over possession of the suit land to him. He has also denied about execution of the agreement (Ex. P-2) and refund of Rs. 1 lakh to him by the defendant No. 1. 13 Thus, the core issue in this case is, as to whether the sale deed (Ex. P-1) executed by plaintiff in favour of defendant No. 1 is a mortgage by way of conditional sale or a sale with condition of re-purchase. In this regard, Clause 3 and 4 of the sale deed (Ex. P-1) are reproduced as under :- “(3) मुझ वि(cid:5)्ቅे ता को अपने घर का्(cid:18) हेतु रकम की अत््ंत आ(cid:5)श््कता है इसलि(cid:29)्े मैं अपने नाम (cid:5)ो हक स्(cid:5)ाविमत्(cid:5) अधि!कार की भूविम जि%सका वि(cid:5)(cid:5)रण ऊपर द%(cid:18) है, उसे ए(cid:5)% मू० ऊपर दቦኋा(cid:18)ए अनुसार ्ቅे ता के पास ब् कर विद्ा हू ं, और 8 अपना अम(cid:29)दख(cid:29) कब्%ा हक, ँ स्(cid:5)ाविमत्(cid:5) अधि!कार ्ቅे ता के प्ቌ में छोड़ विद्ा हू और अब बहक मैं वि(cid:5)्ቅे ता ्ቅे ता के प्ቌ में ्ह ब्नामा लि(cid:29)खकर इकरार करता हू ं, विक ्ቅे ता उ्ሹ भूविम का पूण(cid:18) रूप से स्(cid:5)ामी हो ग्ा है अब (cid:5)ो जि%स तरह चाहे अपना अम(cid:29)दख(cid:29) करें, सरकारी अኚ᭽(cid:18)सरकारी अभिभ(cid:29)ेखों पर अपना नाम द%(cid:18) करा(cid:5)ें, (cid:29)गान पटा(cid:5)ें, उससे हर ्ቚकार से (cid:29)ाभ कमा्ें, इस पर मुझे तथा मेरे (cid:5)ारिरसानगण को कोई आपलिC नहीं होगी । (4) अगर अन्् विदगर व््वि्ሹ उ्ሹ भूविम पर अपना हक (cid:5)ो दा(cid:5)ा करेगें तो (cid:5)ह सब इस ब्नामा के सम्ቌ झूठा (cid:5)ो अ्ቚमाभिणत माना %ा(cid:5)ेगा अगर ्ቅे ता के अधि!कार से कु (cid:29) ्ा कु छ भाग विनक(cid:29) %ाता है, अथ(cid:5)ा कोई भार विनक(cid:29)ता है, तो उसकी संपूण(cid:18) जि%म्मे(cid:5)ारी मुझ वि(cid:5)्ቅे ता पर होगी ।" 14 Perusal of aforesaid contents of sale deed and even complete perusal of it, does not show that it contains any single word that, said transaction was made as ‘mortgage by conditional sale’, rather, contents i.e. 'ब्नामा', 'वि(cid:5)्ቅे ता', '्ቅे ता' and ' ब्नामा कीमती' shows that it was a complete sale transaction and not ‘mortgage by conditional sale’. 15 At this stage, it is apt to refer Section 58 of the Transfer of Property Act, 1882 (henceforth, referred to as ‘Act, 1882’), wherein the terms of “Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage deed" etc. have been defigned. Sub-section (c) of Section 58 deals with ‘mortgage by conditional sale’, which is relevant for the point in issue, and is extracted below :- “58. "Mortgage", "mortgagor", "mortgagee", "mortgage- money" and "mortgage deed" defined. a) (b) xxx xxx 9 xxx xxx xxx 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.” 16 Proviso to sub-section (c) of Section 58 of the Act, 1882 provides that no transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effect or purports to effect the sale. 10 17 As has been stated in preceding paragraph that, sale deed (Ex. P-1) does not contain any word to hold it to be mortgage by conditional sale. In this regard, plaintiff Satruhan (P.W. 1) has deposed that, on the date of execution of the sale deed (Ex. P-1) i.e. on 29-11-2005, defendant No. 1/vendee had executed agreement (Ex. P-1), in which, he had admitted that after refund of Rs. 1 lakh, he (defendant No. 1) will re-transfer suit land by execution of registered sale deed in favour of plaintiff. He has also deposed that, he has returned Rs. 1 lakh in two installments but, this fact has neither been supported by Dev Kumar Das Vaishnav (P.W. 2), who is said to be alleged witness of Ikrarnama (Ex. P-2) nor execution of aforesaid Ikrarnama has been admitted by the defendant No. 1/Vendee. Even plaintiff Satruhan (P.W. 1) himself has admitted in his cross-examination para 18 that, in back side of Ex. P-2, there is no signature of defendant No. 1 below the endorsement of payment of amount. He has also stated in his cross- examination that, he did not know as to what is written in Ex. P-2 and who has written it, as such, only on the basis of vague, baseless and unsupported statement of plaintiff Satruhan (P.W. 1), it cannot be held that, alleged agreement (Ex. P-2) was executed by the defendant No. 1 and plaintiff has returned Rs. 1 lakh to him. Therefore, on the strength of statement of plaintiff alone, it cannot be held proved that the sale deed (Ex. P-1) was a mortgage by conditional sale as it does not contain any such fact, which ought to have been embodied in the sale deed in view of proviso to Section 58(c) of the Act of 1882. 18 In the case of Prakas (dead) by Lr Vs. G. Aradhya & others (Civil Appeal No. 706/2015), similar case came up before Hon’ble Apex Court 11 for consideration. In that case, on 16.10.1963 a property measuring 30 ft. x 60 ft. was purchased by the father of the appellant, Gangaramaiah, in the name of the appellant, who was minor at that time. On 24.12.1973 the father of the appellant, Gangaramaiah sold the aforesaid property to one Rudramma for a sum of 5000/-. The ag ₹ e of the appellant, who claimed himself to be minor at that time, was mentioned as 13 years. On the same day, another unregistered document was executed between the parties claiming to be Reconveyance Deed in terms of which on the request of the vendor, the vendee had agreed to re-transfer the property back within five years of the Sale Deed in case the sale consideration of ₹ 5000/- is paid. 19 In aforesaid case, Hon’ble Supreme Court while considering various judgments, has held in para 25 to 28 as under :- “25. Similar argument, where two separate documents were executed, came up for consideration before this Court in Bishwanath Prasad Singh's case [(2006) 4 SCC 432]. One was the Sale Deed and the second was the agreement for sale. Both were executed on the same date. It was opined therein that to appreciate a document its contents are to be read in entirety and the intention of the parties is to be gathered from the language used therein. Para 16 of the aforesaid judgment is referred to for ready reference: "16. A deed as is well known must be construed having regard to the language used therein. We 12 have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents which was entered into by and between the parties. In fact, the recitals made in the sale deed categorically show that the respondents expressed their intention to convey the property to the appellant herein as they had incurred debts by taking loans from various other creditors." 25.1. Further, in the aforesaid judgment, this Court while interpreting the terms of the agreement executed along with the Sale Deed and opined that the same cannot be treated to be a mortgage as the expression used therein were 'vendor', 'vendee', 'sold' and 'consideration'. Fixed period was granted for execution of the Sale Deed. 25.2. The scope of Section 58(c) of the 1882 Act was considered in detail in paras 27 to 33 thereof which are extracted below: "27. 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 13 condition of retransfer 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 reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser (sic seller), and such a personal right would be lost, unless the same is exercised within the stipulated time. 28. In Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1 SCR 174: AIR 1954 SC 345] this Court clearly held: (SCR p. 177) "We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts." 29. Yet again in Mushir Mohd. Khan v. Sajeda Bano [(2000) 3 SCC 536] this Court upon construing Section 58(c) of the Transfer of Property Act opined: (SCC pp. 541-42, para 9) 14 "9. The proviso to this clause was added by Act 20 of 1929 so as to set at rest the conflict of decisions on the question whether the conditions, specially the condition relating to reconveyance contained in a separate document could be taken into consideration in finding out whether a mortgage was intended to be created by the principal deed. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale." 30. Referring to Chunchun Jha [(1955) 1 SCR 174: AIR 1954 SC 345] it was held: (SCC p. 544, para 14) "14. Applying the principles laid down above, the two documents read together would not constitute a 'mortgage' as the condition of repurchase is not contained in the same documents by which the property was sold. The proviso to clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a 'mortgage by conditional sale'." 31. In Umabai v. Nilkanth Dhondiba Chavan [(2005) 6 15 SCC 243] wherein one of us was a party, this Court held: (SCC p. 254, para 21) "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 retransfer 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 v. Sk. Ebadat Ali [(1955) 1 SCR 174: AIR 1954 SC 345], Bhaskar Waman Joshi v. Narayan Rambilas Agarwal [(1960) 2 SCR 117 : AIR 1960 SC 301], К. Simrathmull v. S. Nanjalingiah Gowder [1962 Supp (3) SCR 476 AIR 1963 SC 1182] Mushir Mohd. Khan [(2000) 3 SCC 536] and Tamboli Ramanlal Motilal [Tamboli Ramanlal Motilal v. 16 Ghanchi Chimanlal Keshavlal, 1993 Supp (1) SCC 295].)" 32. The High Court relied upon Indira Kaur v. Sheo Lal