High Court

Legal Reasoning

(1) sa-235-1995.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.235 OF 1995WITHCIVIL APPLICATION NO.3798 OF 19951)Gayabai W/o Yadav Phukat,Deceased through Lrs,1/1)Dnyaneshwar S/o Yadav Phukat,Age Major, Occu: Agriculture,1/2)Nanda W/o Sanjay Mhaske,Age Major, Occu: Agriculture,All R/o Kumbhari, Taluka Bhokardan,Dist. Jalna...Appellants (Ori. Plaintiffs)Versus1.Makarabai w/o Yadav Phukat,Age 51 years, Occupation Agriculture,R/o. Kumbhari, Taluka Bhokardhan,District Jalna.2.Deorao s/o Bajaba Phukat,Age 56 years, Occupation Agriculture, R/o. Kumbhari, Taluka Bhokardhan,District Jalna...Respondents (Ori. Defendants)…Mr. H. B. Nandagavle h/f Mr. V. G. Sakolkar, Advocate for theAppellants.Mr. Swapnil Joshi h/f M/s. J. P. Legal Associates, Advocate for the Respondent No.2.Respondent No.3 is served.… CORAM : S. G. CHAPALGAONKAR, J. DATE : 10th MARCH, 2025.ORDER:-1.The appellant/original plaintiff impugns judgment and decreedated 30.01.1995 passed by 2nd Additional District Judge, Jalna inRegular Civil Appeal No.109/1993, thereby upholding judgment (2) sa-235-1995.odtand decree dated 31.07.1993 passed by Civil Judge, JuniorDivision, Bhokardan in Regular Civil Suit No.38/1983, by whichsuit of appellant/plaintiff has been dismissed. (Hereinafter, partiesare referred to by their original status for the sake of convenienceand brevity).2.The plaintiff instituted Regular Civil Suit No.38/1983 beforeCivil Judge, Junior Division at Bhokardan seeking relief ofdeclaration of ownership in respect of suit land, declaration thatsale deed executed by defendant no.1 in favour of defendant no.2 isnominal and ineffective and perpetual injunction againstdefendants from obstructing or interfering in peaceful possession ofplaintiff over suit property. The plaintiff contents that she is wifeof defendant no.1-Yadav. On 15.03.1982, defendant no.1 enteredinto an agreement to sale in her favour in respect of land GutNo.316 situated at village Kumbhari. She was immediately putinto possession. Since then, she was cultivating land. In terms oforal agreement to sale, defendant no.1 executed registered saledeed dated 08.09.1983 in her favour. When she made anapplication for mutating her name, she came to know thatdefendant no.1 had already executed registered sale deed dated24.05.1982 in favour of defendant no.2, who is another wife ofdefendant no.1. (3) sa-235-1995.odt3.The defendant no.2, who is wife of defendant no.1-Yadavrefuted contentions of plaintiff and claimed that she is owner andpossessor of suit land on the basis of registered sale deed dated24.05.1982. The plaintiff does not have any right or interest in suitproperty. The sale deed dated 08.09.1983 being subsequent to saledeed of defendant no.2 is void and ineffective. 4.The Trial Court framed issues based on pleadings of parties,recorded evidence and concluded that plaintiff failed to prove oralagreement to sale dated 15.03.1982 or that she was put intopossession in pursuance to such agreement to sale. The defendantno.2 proved her ownership and possession on the basis of sale deeddated 24.05.1982. Consequently, dismissed the suit. Aggrievedplaintiff filed Regular Civil Appeal No.109/1993 before DistrictJudge, Jalna, which is dismissed, upholding judgment and decreeof Trial Court.5.The present Second Appeal has been admitted vide orderdated 30.11.1995, which reads as under:“Heard Mr. Sakolkar, learned counsel for theAppellant and Mr. Naik, learned counsel for theRespondent No.1.2.Mr. Naik strongly opposed admission of the appeal.There, however involves substantial question of law whenevidence between the parties have not been appreciated byraising specific issues in regard to the dispute between theparties.3.Admit.4.Notice.” (4) sa-235-1995.odt6.In pursuance to aforesaid order only issues as to theappreciation of evidence by raising specific issue as regards to thedispute between parties has been framed.7.Mr. Nandagavle, learned Advocate appearing for theappellants submits that both Courts below failed to appreciatepleading and material placed into service on behalf of plaintiff andalso frame appropriate issues in consonance with pleadings ofparties. He submits that oral evidence adduced by plaintiff clearlyshows that on 15.03.1982, defendant no.1 had orally agreed to sellsuit land to her and put her into possession. Later on, he executedregistered sale deed dated 08.09.1983. However, false, sham andnominal sale deed dated 24.05.1982 has been executed bydefendant no.1 in favour of defendant no.2 to frustrate claim ofplaintiff. Such a sale deed is not binding on right of plaintiff. Hewould submit that name of defendant no.2 was never entered intocultivation column in pursuance to sale deed, which suggests thatsale deed dated 24.05.1982 is sham and bogus. Both Courts belowhave erroneously discarded plaintiff’s case only on the ground thatreference of oral agreement to sale is not made in sale deedexecuted by defendant no.1 in favour of plaintiff. Such approach ofCourts below is perverse.8.Per contra, Mr. Joshi, learned Advocate appearing fordefendant no.2 supports judgment and decree. He points out that (5) sa-235-1995.odtplaintiff was second wife of defendant no.1-Yadav. The plaintiffhad earlier married with one Pandurang and she had two childrenfrom such marriage. During subsistence of marriage withdefendant no.2, she had developed relations with defendant no.1.Subsequently, she filed suit for maintenance. Later on,compromise took place in which plaintiff abandoned her claim as tomatrimonial relationship with defendant no.1. Undisputedly,defendant no.2 is wife of defendant no.1 and he executed registeredsale deed dated 24.05.1982 in favour of defendant no.2 therebytransferred ownership and possession in her favour. Thesubsequent sale deed alleged to have been executed by defendantno.1 in favour of plaintiff is of no consequence. Both Courts belowhave concurrently held that plaintiff failed to prove oral agreementto sale dated 15.03.1982 and claim as to the possession over suitproperty. According to him, no substantial question of law arisesfor consideration in this Second Appeal, since issues on controversyhave been appropriately framed and dealt by Trial Court. TheAppellate Court has also framed necessary points for considerationand recorded findings against plaintiff. Therefore, he urges todismiss Second Appeal.9.Having considered submissions advanced and on perusal ofrecord, it is evident that defendant no.2 is wife of defendant no.1-Yadav. They are residing together. During subsistence of their (6) sa-235-1995.odtmarriage, plaintiff, who was already married with one Pandurangand having two children, developed relations with defendant no.1.Later on, plaintiff instituted proceeding for maintenance againstdefendant no.1-Yadav. She received amount of Rs.500/- fromdefendant no.1 as maintenance. Later on, defendant no.1 filedCivil Suit No.17/1983 against plaintiff for cancellation ofmaintenance, in which settlement has been arrived. The deed ofsettlement dated 09.09.1983 is placed at Exhibit-65 on record ofsuit. It records that matrimonial relationship between plaintiffand defendant no.1-Yadav has been terminated by registereddivorce deed executed by them. 10.It is matter of record that registered sale deed dated24.05.1982 has been executed by defendant no.1 in favour ofdefendant no.2. It stipulates about payment of consideration todefendant no.1 and delivery of possession to defendant no.2. Inthis background, subsequent sale deed dated 08.09.1983 executedby defendant no.1 in favour of plaintiff in respect of same propertywould not pass on any title in favour of plaintiff. The Courts belowobserved that with intention to cover up such difficulty, plaintiffdeveloped story of oral agreement to sale dated 15.03.1982 bydefendant no.1 and delivery of possession of suit land to her. TheCourts have further observed that when defendant no.1 andplaintiff were litigating against each other, possibility that (7) sa-235-1995.odtdefendant no.1 will enter into an oral agreement to sale dated15.03.1982 and deliver possession of his agriculture land in favourof plaintiff cannot be countenanced. Although plaintiff hasrecorded oral evidence of witnesses in support of oral agreement tosale and delivery of possession, there is no stipulation in thatregard in sale deed dated 08.09.1983. Further Appellate Courtobserved that sale deed dated 08.09.1983 stipulates about deliveryof possession on the date of sale deed alongwith standing crops.This statement is inconsistent with the case of plaintiff that shewas put into possession on the basis of oral agreement to sale dated15.03.1982. In result, both Courts below have concurrently heldthat plaintiff could not prove oral agreement to sale dated15.03.1982. On other hand, defendant no.2 proved execution ofsale deed dated 24.05.1982. Eventually, subsequent sale deeddated 08.09.1983 executed by defendant no.1 in favour of plaintiffwould not confer any title upon her.11.Although it is argued on behalf of plaintiff that appropriateissues were not framed by Trial Court and controversy is notappreciated on crucial issue, perusal of judgment of Trial Courtshows that issues on all relevant aspects were appropriatelyframed. The learned Advocate appearing for the appellants couldnot demonstrate omission to frame crucial issue by Trial Court onany particular point. Similarly, Appellate Court appropriately (8) sa-235-1995.odtframed points for consideration. Both Courts below haveexhaustively dealt with controversial issues and recordedconcurrent findings of facts. At this stage reference can be given toobservations of Supreme Court of India in case of Gurdev Kaurand Ors. Vs. Kaki and Ors.1, which reads as under:“Now, after 1976 Amendment, the scope of Section 100 hasbeen drastically curtailed and narrowed down. The HighCourts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of laware involved and those questions have been clearlyformulated in the memorandum of appeal. At the time ofadmission of the second appeal, it is the bounden duty andobligation of the High Court to formulate substantialquestions of law and then only the High Court is permittedto proceed with the case to decide those questions of law. Thelanguage used in the amended section specificallyincorporates the words as "substantial question of law"which is indicative of the legislative intention. It must beclearly understood that the legislative intention was veryclear that legislature never wanted second appeal to become"third trial on facts" or "one more dice in the gamble".”12.In light of aforesaid observations, there is no reason tointerfere in concurrent findings of fact recorded by Courts below.13.Consequently, Second Appeal stands dismissed.14.In view of dismissal of Second Appeal, nothing survives inCivil Application and same is accordingly disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/March-20251AIR 2006 SC 1975.