High Court
Legal Reasoning
{1} SA-166-2024IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 166 OF 2024WITHCIVIL APPLICATION NO. 6801 OF 2024INSECOND APPEAL NO. 166 OF 2024Hariram s/o. Kondiba ManeAge: 52 years, Occupation- Agriculturist,R/o. Chandgaon, Taluka: Renapur,District- Latur. ...APPELLANT[Orig. Defendant]VERSUSFakirsaheb s/o. Shankarrao Mane,Age: 64 years, Occupation- Agriculturist, R/o. Chandgaon, Taluka: Renapur,District- Latur. ...RESPONDENT[Orig. Plaintiff].......Mr. D.P. Munde, Advocate for appellantMr. H.B. Nandgavale, Advocate for the respondent....... CORAM : S. G. CHAPALGAONKAR, J. DATE : 2nd DECEMBER, 2024ORDER:1.The appellant takes exception to the judgment anddecree passed by District Judge, Latur, dated 30.03.2024 inRegular Civil Appeal No. 143 of 2015 as well as judgment anddecree passed by Civil Judge, Junior Division, Renapur dated18.09.2015 in Regular Civil Suit No. 21 of 2012, by which theBhagyawant Punde {2} SA-166-2024suit for specific performance of contract i.e. for reconveyance ofthe property and possession instituted by therespondent/plaintiff has been decreed. (For the sake ofconvenience and brevity, hereinafter parties are referred by theiroriginal status in the suit.)2.The plaintiff instituted Regular Civil Suit No. 21 of2012 (Old Special Civil Suit No. 176 of 2008) seeking relief ofspecific performance of contract i.e. for reconveyance of the suitproperty and possession. The suit property is described as GutNo. 102, situated at village Chadgaon, Taluka- Renapur,particularly specified in the schedule of the plaint. According tothe plaintiff, he was in the need of money. He approached thedefendant with demand of Rs. 1,50,000/-. On insistence ofdefendant, he executed sale deed dated 26.02.2004 in favour ofdefendant. Towards security of the loan. The defendant hadagreed that he will reconvey the suit property to plaintiff onrepayment of amount of Rs. 1,50,000/- and towards interest hewould enjoy the suit property till the date of reconveyance.Consequently, defendant also executed agreement ofreconveyance on the same day i.e. on 26.02.2004, and agreedthat on repayment of amount of loan he shall execute the saleBhagyawant Punde {3} SA-166-2024deed of suit property in favour of the plaintiff. The plaintiff wasto repay the loan till 25.02.2008, however, defendant refused toaccept the amount of loan and returned the suit land. Theplaintiff issued a legal notice dated 20.02.2008 to defendantseeking reconveyance, however, defendant gave false replydated 27.02.2008 and refused to execute sale deed in his favour.The plaintiff lodged FIR against the defendant for illegal moneylending business, however, the matter was settled. Thedefendant executed an agreement/compromise memo dated17.04.2008 in presence of witnesses and agreed to return thesuit property to the plaintiff. However, he failed to act uponagreement. Consequently, the plaintiff filed the suit.3.The defendant refuted the contentions of plaintiff byfiling written statement. He denied execution of the agreementof reconveyance. He contended that the transaction was out andout sale, plaintiff had sold out the suit land to him for full andfinal consideration and delivered the possession. Indeed plaintiffwas indebted and he was in financial need. Considering hisrequest the land was purchased for the consideration,consequently possession was handed over to the defendant.Bhagyawant Punde {4} SA-166-20244.In view of contentious issues surfaced from thepleadings of respective parties, Trial Court framed the issues.Both the parties recorded oral evidence and tenderedsupporting documents. The Trial Court after evaluation ofevidence and hearing the parties concluded that the transactionunder sale deed was nominal. The defendant had agreed toreconvey the suit property in favour of plaintiff. The plaintiff wasalways ready and willing to perform his part of agreement.Consequently, directed the plaintiff to deposit Rs. 1,50,000/- anddirected the defendant to execute reconveyance of the sale deedof suit property in favour of plaintiff within a period of 15 days.The decree passed by the Trial Court assailed by defendant inRegular Civil Appeal No. 143 of 2015. The District Courtconcurred with the findings recorded by the Trial Court anddismissed the appeal.5.The core issue involved in the present second appealis as to whether the Courts below are justified in holding that thesale deed dated 25.02.2004 executed by the plaintiff in favour ofdefendant was nominal or whether the transaction between theparties was the mortgage by way of conditional sale ascontemplated under Section 58(c) of Transfer of Property Act.Bhagyawant Punde {5} SA-166-20246.Mr. D.P. Munde, learned advocate appearing for theappellant would submit that plain reading of contents of saledeed clearly depicts that it was an absolute sale transaction forconsideration. Admittedly, the plaintiff had received theconsideration amount and passed on possession in favour of thedefendant. There was no condition of reconveyance in the samedocument. Therefore, both the Courts below have committedpatent error of law while holding that the sale transaction wasnominal or for the purpose of security of loan. In support of hiscontentions, he placed reliance on the judgment of SupremeCourt in the case of Raj Kishore (Dead) By LRS. vs. Prem Singhand Others1 and Prakash (Dead) By L.R. v. G. Aradhya2.7.Per contra, Mr. Nandgavale, learned advocateappearing for the respondent supports the judgment and decreepassed by Courts below. He would submit that concurrentfindings of facts have been recorded by the Courts below onappreciation of evidence on record and no substantial question oflaw arises for consideration in this second appeal.8.Having considered the submissions advanced andafter going through the reasoning adopted by the Courts below,1(2011) 1 SCC 6572AIRONLINE 2023 SC 643Bhagyawant Punde {6} SA-166-2024it can be observed that the plaintiff had executed sale deeddated 26.02.2004 in favour of defendant in respect of the suitproperty. It is true that the contents of sale deed no wheredepict that it was transaction of mortgage. The nature oftransaction as discernible from the contents of sale deed appearsto be a complete sale. It is also admitted that the possessionwas delivered to the defendant in pursuance of the sale deed.However, on very same date i.e. 26.02.2004, the defendant hasexecuted agreement of reconveyance on repayment of theamount of loan till 25.02.2008. Although, the defendant deniedexecution of said agreement. Plaintiff recorded his own evidenceand examined witnesses to the transaction i.e. PW2- RambhauIngle and PW3- Damodar Kasbe. Both of them categoricallydeposed that plaintiff was in the need of money and oninsistence of defendant, document in the nature of sale deed wasexecuted. It was agreed between parties that the loan amountreceived by plaintiff would be repaid within the period of fouryears and on said repyament the property would be reconveyedin favour of the plaintiff. The independent document ofreconveyance was executed by defendant on the same date.9.The Trial Court as well as the Appellate Court foundBhagyawant Punde {7} SA-166-2024that the evidence recorded on behalf of plaintiff was reliable.Further as regard to admissibility of such evidence and bar underSection 92 of Evidence Act, both the Courts have concurrentlyrecorded a finding that two independent documents depict realintention of parties and leading of evidence to show intention ofparties would be permissible in view of clause 6 of Section 92 ofIndian Evidence Act. No fault can be found with the approach ofthe Courts in recording the aforesaid conclusion.10.Although, appellant contended that in view of Section58(c) of Transfer of Property Act transaction can be treated asmortgage by conditional sale, such contention cannot beaccepted for the simple reason that there are two independentdocument of transactions and condition of reconveyance is notincorporated in document of sale itself.11.One more important factor needs attention isexecution of compromise at Exhibit-32 by defendant in responseto the complaint made by the plaintiff to the authorities underMoney Lending Act. Even the said agreement is proved byrecording evidence of witnesses, which clearly depictstransaction between parties was a security to loan and not anout and out sale. In that view of the matter, no substantialBhagyawant Punde
Decision
{8} SA-166-2024question of law arises for consideration in this second appeal.Second Appeal stands dismissed.12.In view of disposal of second appeal, pending civilapplication stands disposed of. [S. G. CHAPALGAONKAR, J.]Bhagyawant Punde