High Court
Legal Reasoning
1 SA.422-93+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.422 OF 1993WITHCIVIL APPLICATION NO.7564 OF 2003IN SECOND APPEAL NO.422 OF 1993Bhagwan S/o Sakharam Khatol,Age 24 years, Occu. Agril.,R/o Aurangabad.… Appellant. (Ori. Plaintiff)VersusSahebrao S/o Dhondiba Mahanor,Age 44 years, Occu. Agril.,R/o. Nakshetrawadi,Tq. and District Aurangabad.… Respondent. (Ori. Defendant)...Advocate for Appellant : Mr. K. A. Ingale.Advocate for Respondent : Mr. A. D. Kasliwal.…CORAM : SHAILESH P. BRAHME, J.RESERVED ON : 04.08.2025PRONOUNCED ON : 07.08.2025.JUDGMENT :- 1.Heard both the sides finally. 2.Appellant is aggrieved by judgment and decree dated01.01.1993 passed by learned Additional District Judge,Aurangabad in Regular Civil Appeal No.26 of 1989, allowingappeal of the respondent thereby dismissing the suit of theappellant for possession and arrears of rent. Appellant’s suit 2 SA.422-93+1.odtbearing Regular Civil Suit No.1051 of 1987 was partly decreedby the Trial Court to the extent of arrears of rent only. 3.Appellant who is original plaintiff claims to be the ownerof plot No.95, situated at Nakshtrawadi, Aurangabad. It waspurchased by registered sale deed dated 18.06.1982 from therespondent. It was let out on 15.01.1983 by the appellant tothe respondent on rent of Rs.80/- per month. Respondent paidrent upto April 1987. A notice terminating tenancy was issuedby the appellant on 15.09.1987. Thereafter, suit was filed forpossession and arrears of Rs.480/-. 4.Suit is contested by the respondent denying title of theappellant as well as theory of tenancy. It is contended thatrespondent is all the while in possession of the suit plot ontitle. 5.Appellant examined three witnesses. The respondentexamined two witnesses. The Courts below are at variance asto the ownership of the appellant and the creation of tenancy.As Lower Appellate Court is against the appellant on the pointof ownership and the tenancy, the points of termination oftenancy and arrears of rent are not gone into. 3 SA.422-93+1.odt6.Second Appeal is heard on following substantialquestions of law :“i. Whether the learned District Judge was justified inholding that the sale deed dated 18.06.1982 executed bydefendant in favour of plaintiffs is invalid only on thebasis of discrepancy in the evidence of P.W.2/attestingwitness when sale deed, being registered documentwould raise presumption under Section 49 of theRegistration Act ?ii. Whether in absence of the specific challenge is toexecution of sale deed by defendant, the appellate Courtwas justified in discarding plaintiff's case and reversingthe findings on issue No.1 as recorded by trial Court.iii. Whether Trial Court was justified in holding thatnotice under Section 106 of Transfer of Property Act isinvalid and whether appellant/plaintiff can be non-suitedon that ground ?”7.Learned counsel Mr. Ingale for the appellant hascanvassed that Lower Appellate Court committed error ofjurisdiction in doubting the ownership of the appellant in thewake of registered sale deed, mutation entry and oralevidence. He would submit that discrepancy in the depositionof the witnesses found by the learned Judge is insignificant andit would not affect the title. It is vehemently submitted thatrespondent did not challenge sale deed at any point of time. Itis submitted that notice of termination Exh.23 is valid as per
Legal Reasoning
4 SA.422-93+1.odtSection 106(3). It is further submitted that no cross objectionwas required to be filed but Order 41 Rule 33 empowers LowerAppellate Court to grant relief of possession. 8.Per contra, learned counsel Mr. Kasliwal for therespondent submits that suit was partly decreed to the extentof arrears of rent. It was incumbent upon the respondent/appellant to prefer appeal against the refusal of decree forpossession which is not done. Hence, it is not open for him toseek relief of possession. It is submitted that sale deed dated18.06.1982 is silent regarding payment of consideration. Theoral testimony of the witnesses also does not disclose paymentof consideration. No date is mentioned on which thepossession was handed over. It is contended that thetransaction was incomplete and no title was ever transferred. 9.I have considered rival submissions of the parties. I havealso gone through record and proceedings with the assistanceof both sides. A registered sale deed executed by therespondent in favour of the appellant is marked at Exh.30.There is no documentary evidence to show that tenancy wascreated, rent was fixed and rent was paid upto 15.04.1987.The notice of termination dated 15.09.1987 under Section 106at Exh.23 was served on the respondent on 03.10.1987. In the 5 SA.422-93+1.odtbackdrop of above admitted facts, I proceed to examine therival contentions. 10.Appellant had filed suit for reliefs of possession andarrears of rent which are distinct in nature. The decree forpossession is refused by the Trial Court, albeit, decree forarrears of rent is granted. Respondent preferred appeal againstpartial relief of arrears of rent. Appellant did not file any crossappeal or cross objection to challenge denial of decree ofpossession. It is mandatory for him to challenge the same. If afinding is recorded against the party who is defending a decreein an appeal, then, there is no requirement of preferring anycross objection or cross appeal. 11.Learned counsel Mr. Kasliwal appearing for respondenthas rightly relied on the judgment of Banarasi and others Vs.Ram Phal ; AIR 2003 Supreme Court 1989 which isconsistently followed. In that view of the matter, in the absenceof any challenge, I am not inclined to grant relief of possessionin the present appeal.12.The parties are inter-se related and that is the reason putforth by the appellant for letting out suit plot withoutexecuting any formal lease deed. There is no documentary 6 SA.422-93+1.odtevidence to show that tenancy was created and rent of Rs.80/-per month was fixed. A notice at Exh.23 issued by theappellant terminating tenancy and demanding rent is the onlydocument to show that tenancy was created. No rent receiptsare placed on record. In the absence of convincing material, Iam not inclined to hold that a tenancy was created andrespondent committed default. 13.I find it necessary to delve on important facets of thematter i.e. ownership of the appellant. The Courts below are atvariance on this count. Though appellant is not entitled to therelief of possession, he is entitled to claim ownership of the suitplot and entitled to assail finding recorded by the LowerAppellate Court in that regard. By implication of powers underSection 103 of CPC, this Court has jurisdiction to considerclaim of ownership of the appellant.14.Appellant examined himself who was minor at the timeof execution of the sale deed. He examined his father who waslooking after the transaction and the attesting witness Jijaram.The sale deed is marked at Exh.30 when contents andexecution are proved by the oral evidence. It’s a registered saledeed. It has probative value and cannot be discarded forinsignificant deficiencies in the oral evidence. 7 SA.422-93+1.odt15.It is tried to be argued by Mr. Kasliwal that saletransaction was invalid because factum of payment andpossession are not proved. The contents of the sale deed atExh.30 refers to consideration of Rs.3,000/- which iscorroborated by P.W.1 and P.W.3. In the absence of any disputeregarding the quantum of consideration, the date of paymentcarries little significance.16.The sale deed Exh.30 further refers to handing over ofpossession. Being registered document it cannot be discardedeasily. The witness of the respondent deposed that possessionwas with the respondent only but he is an interested witness. Ido not find that there are major discrepancies or illegality inthe sale transaction. 17.This Court cannot be oblivious of the fact that inpursuance of the sale deed record of right is mutated videentry No.409 and it is produced on record at Exh.25. Thismutation has also not been challenged by the respondent. Ifthe respondent comes up with theory that there was no saletransaction at all, then, he would have challenged the saledeed by filing appropriate suit for declaration. Notice at Exh.23was served upon him. But still he did not challenge sale deed. 8 SA.422-93+1.odtThe respondent is estopped from challenging ownership of theappellant. I am of the considered view that appellant is theowner of the suit plot and he is entitled to take recourse tosecure possession as permissible in law.18.Learned counsel for the appellant is rightly referred tojudgment of Supreme Court in the matter of Jamila BegumDied through L.Rs. Vs. Shami Mohd. Died through L.Rs. andanother ; 2019 (4) Mh.L.J. 500 in respect of probative value ofa registered document. Its paragraph No.14 is relevant whichis as follows : “14. Sale deed dated 21.12.1970 in favour of JamilaBegum is a registered document and the registration ofthe sale deed reinforces valid execution of the sale deed.A registered document carries with it a presumption thatit was validly executed. It is for the party challenging thegenuineness of the transaction to show that thetransaction is not valid in law. In Prem Singh and othersVs. Birbal and others, (2006) 5 SCC 353, it was held asunder :- “27. There is a presumption that a registereddocument is validly executed. A registereddocument, therefore, prima facie would be valid inlaw. The onus of proof, thus, would be on a personwho leads evidence to rebut the presumption. In theinstant case, Respondent 1 has not been able to rebutthe said presumption.” The above judgment in Prem Singh’s case hasbeen referred to in Vishwanath Bapurao Sabale Vs. 9 SA.422-93+1.odtShalinibai Nagappa Sabale and Others, (2009) 12 SCC101.”19.Reliance is placed by the learned counsel for theappellant on the judgment of Azgar Barid (Dead) by LegalRepresentatives and others Vs. Mazambi Alias Pyaremabi andothers ; (2022) 5 Supreme Court Cases 334 in respect of thepowers of Appellate Court under Order 41 Rule 33. This is nota fit case to invoke Order 41 Rule 33 for granting relief ofpossession to the appellant. In the case at hand, appellantchose not to file appeal against refusal of decree of possession.This glaring facts distinguishes the case from the reportedjudgment. The judgment will not help the appellant. 20.Further reliance is placed on judgment of Giani Ram andothers Vs. Ramjilal and others, (1969) 1 Supreme Court Cases813. It provides for scope of powers of the Appellate Courtunder Order 41 Rule 33. The appellant has failed to make outa case for relief of possession. Hence, this judgment will nothelp him. 21.Learned counsel for respondent Mr. Kasliwal seeks torely on judgment and the scope of jurisdiction under Section100 of the Civil Procedure Code. By referring to judgment of 10 SA.422-93+1.odtDamodar Lal Vs. Sohan Devi and others ; 2016 ALL SCR 379and Thiagarajan and others Vs. Sri. Venugopalaswamy B. Koliand others ; AIR 2004 Supreme Court 1913 (1). This judgmentwill not help the respondent because I am not granting relief ofpossession and arrears of rent. But rectifying the findings onthe point of title by invoking powers under Section 103 of theCivil Procedure Code. 22.Further reliance is placed on the judgment ofKaliaperumal Vs. Rajagopal and another ; AIR 2009 SC 2122.The respondent did not challenge sale deed either by separatesuit or by counter claim. Being registered instrument there is apresumptive value of title of the appellant. No benefit of thereported judgment can be given to the respondent. 23.For the reasons referred above, though I am not inclinedto allow Second Appeal, I hold that findings for the substantialquestions of law at serial Nos. (i) and (ii) needs to be recordedin favour of the appellant. I, therefore, pass following order :O R D E R(i)Second appeal is dismissed. There shall be noorder as to cost. 11 SA.422-93+1.odt(ii)However, appellant is held to be owner of suit plotand he is entitled to take recourse to remedyavailable for him for securing possessionseparately.(iii)In view of disposal of second appeal, civilapplication does not survive. The civil applicationas such is disposed of. (SHAILESH P. BRAHME, J.)...24.Learned counsel for the appellant after pronouncementof the order, seeks stay to the operation of the part ofdeclaration incorporated in the present order. 25.Learned counsel for the appellant opposes the request. 26.The declaration part cannot be said to be executable one,immediately. I do not find any case is made out for grantingstay. The request is rejected. (SHAILESH P. BRAHME, J.)...vmk/-