High Court

Legal Reasoning

{1} SA 425.24 r.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 425 OF 2024Dagdu S/o. Mahipathi Pere (Deceased)through LRs1] Smt. Jijabai w/o. Dagdu Pere,Age 73 yers, Occ. Agri,R/o. Patoda, Tq. And Dist. Aurangabad.2] Smt. Latabai @ Mandabai Madhukarwaghchavre,R/o. Dhoopkheda, Tq. Paithan,Dist. Aurangabad... Appellant.Versus1] Dr. Jainendra s/o. Inderchand Challani,Age 55 years, Occ. Doctor,Plot No. 29, N-3 CIDCO,Aurangbad.2] Tukaram S/o. Hari Matkar,Age 66 years, Occ. Agri,R/o. As above.3] Sudam s/o. Dagdu Pere,Age Major, Occ Agri,R/o. Ptoda, Tq. And Dist. Aurangabad... Respondents ( Ori. Defendants).Mrs. P.V. Lange, Advocate for appellantsMr. P.F. Patni, Advocate h/f. Mr. S.L. Naswe, Advocate for respondent No.1. CORAM :S.G. CHAPALGAONKAR, J. DATE : 9th DECEMBER, 2024. {2} SA 425.24 r.odt JUDGMENT :-The appellants/LRs of original plaintiff impugn judgmentand decree dated 14.6.2024 passed by District Judge, Aurangabad inR.C.A. No. 82 of 2019, as well as the judgment and decree dated13.2.2019 passed by Civil Judge (J.D.), Aurangabad in R.C.S. No. 449 of2012.2.For sake of convenience, parties are referred to as per theiroriginal status.3.The appellants/original plaintiffs instituted a suit seekingdeclaration that sale deed dated 30.6.2010 is null and void and forperpetual injunction. It is the case of the plaintiff that he is exclusiveowner and possessor of suit property. He was in need of money. Hence,he approached defendant No.2 Tukaram, who is a money lender. Heagreed to advance the amount on condition of execution of sale deed inrespect of suit land by way of security. Consequently, plaintiff executedsale deed dated 5.9.2008 in favour of defendant No.2. Thereafter,defendant Nos. 1 and 2 prepared false cheques in the name of plaintiff.They obtained signatures of the plaintiff on withdrawal slip. They gotwithdrawn amount from their own accounts. Defendant Nos. 1 and 2 incollusion with each other called plaintiff to the office of Sub-Registrar,prepared false documents and got executed sale deed in favour ofdefendant No.1, wherein, plaintiff’s son - Defendant No.3 is shown asconsenting party. According to plaintiff, his wife and son have notreceived any consideration amount. They are in actual possession ofproperty. Defendant Nos. 1 and 2 obstructed plaintiff’s possession over {3} SA 425.24 r.odtsuit property. Plaintiff filed police complaint and also issued legal noticedated 5.12.2011 for re-conveyance of sale deed, which is not replied bythem.4.Defendant No.1 filed written statement, contending thatplaintiff firstly executed sale deed of 31 Guntha land in favour ofdefendant No.2 on 5.9.2008. He handed over possession of the property.Mutation entry was certified in pursuance of the aforesaid saletransaction. The defendant No.1 wanted to purchase 1 Acre land.Defendant No.2 agreed to sale his 31 Guntha land and plaintiff agreed tosale his 10 Guntha land. Consequently, sale deed for 41 Guntha land hasbeen executed in favour of defendant No.1 against consideration of Rs.1,15,000/- to plaintiff and Rs. 1,50,000/- to defendant No.2. Accordingly,sale deed dated 30.6.2010 has been executed in favour of defendantNo.1. Plaintiff received his consideration amount under 2 differentcheques drawn on Malkapur Urban Cooperative Bank. Plaintiff haswithdrawn said amount and filed present suit only to extract moremoney.5.The trial court framed issues. Parties led their respectiveevidence in trial. After hearing parties, the trial court concluded that saledeed dated 30.6.2010 is valid and defendant No.1 has acquiredownership and possession of said land. The claim of plaintiff fordeclaration and injunction came to be rejected. Consequently, suit hasbeen dismissed.The appellate court also concurred with the findingrecorded by the trial court and dismissed the appeal filed by plaintiff.6.Mrs. Puja Langhe, learned advocate for theplaintiffs/appellants submits that defendant Nos. 1 and 2 obtained sale {4} SA 425.24 r.odtdeed by mis-representation. No consideration was passed on to theplaintiff against the sale of land. The possession continued with plaintiffand his son. She would further submit that suit property is joint familyproperty of the plaintiff and his son. The sale deed is without legalnecessity. Such sale deed would be invalid. By inviting attention of thisCourt to the cross-examination of witnesses, she would submit thatdefendant No.2 has admitted during cross examination that till death ofplaintiff Dagadu, he was in possession. Further, defendant No.1 couldnot tell the exact date of execution of sale deed and also admitted that hehad not made inquiry as regards to the existence of legal necessity.According to her, both the courts below have committed serious error inappreciation of evidence and dismissing the suit. In support of hersubmissions, she relies upon following judgments :-I] Kewal Krishan vs. Rajesh Kumar and others reported in 2022(2)Mh.L.J. 25ii]Krushna Mohan Kul @ Nani Charan Kul and another Vs. PratimaMaity and others reported in AIR 2003 Supreme Court 4351.7.Mr. Patni, learned advocate for respondent No.1 – Caveatorsupports the impugned judgment and decree, contending that theconcurrent findings of fact need not be disturbed in second appeal. Nosubstantial question of law arises for consideration in this Appeal.According to him, the objections raised in the second appeal areessentially regarding factual aspects of the matter, which are rightly dealtand decided by the courts below.8.Having considered submissions advanced and on perusal ofthe reasoning adopted by the courts below, it can be observed that the {5} SA 425.24 r.odtsuit has been filed by plaintiff seeking declaration that the sale deeddated 30.6.2010 in respect of 41R land from Gat No.16 situated atVillage Patoda, District Aurangabad is null and void and not bindingupon the plaintiff. It is contention of the plaintiff that in fact, he hadexecuted nominal sale deed dated 5.9.2008 in favour of defendant No.2by way of security against loan. Lateron, defendant Nos. 1 and 2, incollusion with each other, misrepresented him and got executed saledeed dated 30.6.2010 in favour of defendant No.1. It can be observedthat sale deed dated 5.9.2008 executed by plaintiff is for 31R land. Thecontents of sale deed clearly show that it was an out and out sale forconsideration. There is nothing on record to show that it was a loantransaction, as contended by plaintiff. Lateron, plaintiff and Tukaramjointly executed sale deed dated 30.6.2010 in favour of defendant No.1.Land admeasuring 41R has been transferred in ownership of defendantNo.1. The area of 31R land purchased by defendant No.2 Tukaram fromplaintiff, and 10R land out of ownership of plaintiff has been transferredto defendant No.1 under aforesaid sale deed. Sudam (defendant No.3)who is son of plaintiff is a consenting party to the sale transaction. It canbe observed that consideration amount was paid by way of cheques. Thedetails of such cheques are mentioned in the sale deed. Those chequeshave been realized. The plaintiff received consideration of Rs. 1,15,000/-towards his 10 Guntha land, which is subject matter of sale deed dated30.6.2010. Tukaram received consideration of Rs. 1,50,000/- towards his31 Guntha land.9.In this background, there is nothing on record to show thatimpugned sale transaction was a result of fraud or mis-representation, ascontended by plaintiff. It is trite that sale transaction can be declared asnull and void on the ground of fraud or mis-representation. Plaintiff was {6} SA 425.24 r.odtrequired to lead adequate evidence in respect of such contention. Theburden to prove that sale-deeds are outcome of fraud or mis-representation was to be discharged by plaintiff. In present case, onlytwo circumstances are sought to be relied upon to contend that sale deedwas an outcome of fraud or mis-representation. According to plaintiff,the possession continued with his family. For that purpose he relies onadmission of DW-2 stating that plaintiff Jijabai is in possession of suitland. However, perusal of her cross-examination shows that,immediately on next breath, DW-2 states that he is not aware as to who isin actual possession of land. Therefore, based on such stray unsupportedadmission, no inference can be drawn that transaction was not genuine.Plaintiff is also contending that consideration was not passed on to him,which appears to be inconsistent with the record as the amount ofconsideration paid by cheques has been reached to his account. As such,aforesaid circumstances are not sufficient to bring home the case of fraudor mis-representation.10.The second contention raised on behalf of plaintiff is that,suit property is ancestral property and that has been sold without legalnecessity. However, such ground is not available to the plaintiff in thiscase. Plaintiff himself sold out the property under registered sale deedand now raising challenge to the said transaction. It is trite that Karta ofHindu Joint Family is entitled to transfer joint family property for legalnecessity. Such transfer would be voidable at the instance of anothercoparcener, who assails validity of the transaction on the ground that itsans legal necessity. In present case, suit is not instituted by a coparceneragainst Karta seeking partition. Challenge in the suit is to the sale deedis by party to sale transaction on the ground that it is outcome of mis-representation. However, such contention is not proved. Therefore, {7} SA 425.24 r.odtsecond contention would also not be available to the plaintiff/appellant.11.Both the courts have concurrently held that plaintiff failed toprove that defendant No.1 exercised fraud or mis-representation in anymanner. Consequently, no substantial question of law arises forconsideration in this appeal. The appeal, being sans merit, standsdismissed. Civil application, if any, stands disposed of.[S.G. CHAPALGAONKAR, J] grt/-