Atmaram vs Banarasibai

A.B. Chaudhari, J.—1. Being aggrieved by the judgment and decree dated 16th February, 2001 in Regular Civil Appeal No. 120/1999 passed by the learned 4th Additional District Judge, Akola, setting aside the judgment and decree dated 30.3.1999 passed by 3rd Joint Civil Judge, Junior Division, Akola in Regular Civil Suit No. 664/1992, the present Second Appeal was preferred by the unsuccessful original defendant.

FACTS:

The respondent/original plaintiff-Smt. Banarasibai instituted a suit for permanent injunction against the appellant/original defendant of the suit land, on 18.11.1992. In the suit, she pleaded that she had purchased the suit field/property belonging to the appellant in a village which was located 40 kms. away from Akola town and that after the purchase, when her son had gone to the field on 11.10.1992, the appellant had threatened him not to enter the field and, therefore, a notice dated 13.10.1992 (Exh.72) was issued to him. In the notice, as well as in the suit, it was stated that the respondent/plaintiff was in possession of the suit land for the last three years and, as such, her possession could not be disturbed, she being lawful owner of the suit property. The property was duly mutated in the revenue records in her name and, thus, she prayed for permanent injunction. The appellant having appeared, filed written statement and opposed the suit and submitted that the appellant was having a fair price shop and three years before the alleged sale-deed, there was a transaction of taking loan since the appellant was in need of money for running the shop as his crops had failed in those years. The transaction of taking loan on interest and repaying back and again taking loan, had taken place. Insofar as the sale deed is concerned, it was a mortgage that he was executing the mortgage deed, but the same turned out to be the ultimate sale deed. The sale deed was for security of loan which was also paid by the appellant. The respondent-money lender has been lending money on higher interest to the fair-price shopkeepers and agriculturists and, therefore, the transaction was by way of security of loan and not the real transaction of sale. The respondent/plaintiff was never in possession of the suit property and in connivance with the revenue officials, she managed to enter her name as the purchaser but possession was never given. Since she was not in possession, the question of issuing temporary injunction did not arise. The appellant therefore, prayed for dismissal of the suit.

The learned trial Judge dismissed the suit filed by the respondent/plaintiff, who carried an Appeal to the District Court. The lower Appellate Court allowed the Appeal and decreed the suit. Hence this Second Appeal.

SUBMISSIONS :

In support of the Appeal, Mr.V.M. Moon, learned counsel for the appellant vehemently argued that the transaction was out and out transaction of loan, because the respondent was a money lender lending money to the people on exorbitant rate of interest and it is out out of money lending transaction only, the sale deed was executed, on the pretext of executing a mortgage deed by way of security of loan that was taken by the appellant. According to him, the loan was completely repaid and sale deed was never to be acted upon and was in fact not acted upon, inasmuch as the possession was never given to the respondent/plaintiff who resides at Akola town, which is at a distance of 40 kms. from the location of the field and not only that DW 3 Rameshwar has been examined by the appellant to prove the fact that the respondent/plaintiff is a money lender and, in fact, in the case of Rameshwar almost during the same time i.e. on 24.1.1991 six months before the sale deed in question, Rameshwar had taken a loan and an agreement was executed for sale of 3.59 H for consideration of Rs. 75,000/- in favour of respondent. According to him, Rameshwar entered the witness box and his evidence went unchallenged on material particulars. As to business of money lending done by the respondent/plaintiff, inviting my attention to Exh. 87, copy of the suit being Suit No. 169/1993, Mr. Moon contended that ultimately on 2.8.1995 after Rameshwar paid the entire amount with interest, by filing a withdrawal pursis (Exh.89) the said suit was withdrawn, by way of out of court settlement. But then, according to Mr. Moon, the fact that the respondent had been doing money lending business and the sale deed in question is of the same period as in the case of Rameshwar and, therefore, the appellant has clearly proved his case beyond all probabilities about the money lending business of respondent. According to Mr. Moon, the respondent never asserted that he was agriculturist or agricultural labourer in order to purchase the suit property and, on the contrary, her son admitted in the cross-examination that their business was of sale of grains. Mr. Moon then submitted that the respondent never filed any Khasra for the relevant years to show that possession was given to the respondent i.e. relevant year 1991-92, but filed Khasra 7/12 extract of the year 1992-93 but then that was manipulated. What was relevant was the Khasra for the year 1991-92 which is not found on record. Mr. Moon then contended that the respondent miserably failed to prove the ownership by providing the sale deed itself and that is finding of fact recorded by the trial Judge and, as such, no ownership could be said to be proved on the plaintiff by merely looking the entry 7/12 extract in the absence of the available documentary evidence, namely, the original sale deed which was never filed on record. What was filed was photo copy of the alleged original sale deed. Even certified copy was not obtained for filing in the Court for leading the secondary evidence. Thus, the sale deed having been denied, the respondent was not the owner of the suit field as contended by her and, therefore, the decree could not have been passed by the lower Appellate Court. The judgment of lower Appellate Court is clearly faulty and does not meet the reasons recorded by the trial Judge on the aspect of ownership or possession. The appellant therefore prays for reversal of for the judgment of lower Appellate Court. Mr. Moon, the learned counsel relied on the following decisions:

1) , AIR 1982 SC 20 : Smt. Gangabai vs. Smt. Chhabubai

2) , AIR 1993 SC 398 : Bhagwan Sharma vs. Smt. Bani Ghosh

3) , AIR 1994 SC 762 : Mahendra Singh vs. Jagbir Singh

Per contra, Mr. B.N. Mohta, learned counsel for the respondent/plaintiff vehemently opposed the Appeal and supported the impugned judgment and order made by the lower Appellate Court. Mr. Mohta, contended that though it is true that the original document of sale deed was not brought on record and consequently it could be said that the sale transaction was proved, nevertheless the possession was proved by the respondent/plaintiff and, therefore, there can be a decree for protecting possession of plaintiff with the aid of Section 53A of the Transfer of Property Act, by treating the sale deed as agreement of sale, that too registered. Mr. Mohta, fairly conceded that the original sale deed as well as the certified copy was not produced before the Court in order to prove the ownership. But then the fact remains that the respondent/plaintiff paid valuable consideration for transfer of the suit property and the document in the form of sale deed was executed in favour of respondent /plaintiff and the revenue record clearly shows possession of the respondent/plaintiff throughout. He then contended that at the appellate stage 7/12 extract was filed on record, but then fairly stated that no application was made for filing additional evidence before the Appellate Court. Nevertheless, according to him, the 7/12 extract or the Government records show consistently the respondent in possession right after 1992-93. He therefore, contended that the lower Appellate Court''s judgment need not be interfered with. He contended that there is no evidence that the respondent was doing money lending business, as alleged. A single and solitary incident brought through Rameshwar about the money lending transaction as alleged, is not ipso facto proof of the fact that the transaction of sale deed in question was a money lending transaction. The theory of mortgage has not been proved by the appellant or that the consideration in the sale deed was towards security for loan. He, therefore, contended that there is no substantial question of law that is required to be decided and, therefore, the Appeal deserves to be dismissed. In the alternative, Mr. Mohta contended that since another suit is pending before the trial judge regarding partition etc. there is no need to record a finding about the nature of transaction. Mr. Mohta cited the following decision :-

1) , AIR 1999 SC 2203 : Brij Raj singh (Dead) by Lrs vs. Sewak Ram

2) Judgment in W.P. No. 6330/2006 of Bombay High Court

Heard learned counsel for the rival parties at length. Seen the reasons recorded by the courts below. This Court had admitted this Appeal on 24.6.2004 on the following substantial questions of law.

(1) Whether Lower Appellate Court framed the proper points for determination as provided under order 41 Rule 31 of the Civil Procedure Code?

(2) Whether the defendant is precluded from leading oral evidence in support of his contention that the sale deed is in question was sham and bogus and it is a money lending transaction to security of loan and it was not to be acted upon by the parties under Section 54 of the Transfer of Property Act and under Section 92 of Evidence Act?

(3) Whether the finding of fact recorded by the Lower Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature under Section 103(b) of Civil Procedure Code?

In supersession thereof, I frame the following substantial questions of law :

1) Whether the respondent/plaintiff having failed to produce and prove the primary evidence, namely, the sale deed in original, on which the suit was filed, the plaintiff could ever be termed as the owner of the suit property under the sale deed? No

2) Whether the appellant/defendant was entitled to plead and prove that the transaction in the alleged sale deed was not intended to be acted upon at all between the parties and the document of sale deed being sham and bogus was not admissible in evidence and particularly that the transaction was one of money lending, more so in the light of the ratio laid down by the Hon''ble Supreme Court in the case of Gangabai vs. Chhabubai: , AIR 1982 SC 20.?..Yes.

3) Whether the lower Appellate Court erred in reverting the finding of fact arrived at by the trial Judge that the plaintiff was never placed in possession and the possession was never proved, as such to make any decree for permanent injunction ?.. Yes.

What order ? Second Appeal is allowed.

CONSIDERATION:

At the outset, there should not be any difficulty in answering the Question No. 1 because, in fairness, Mr. Mohta, learned counsel for the respondent conceded and the record also shows that though the original sale deed could be filed on record and proved, the the same was never brought before the Court to prove the ownership of respondent/plaintiff, for which no explanation is forthcoming. The terra firma of the case of respondent/plaintiff was that sale deed was of 25.6.1991 itself. The defendant denied that it conveyed the suit property as the transaction was in the nature of security for loan. That is the important reason why the original sale deed was required to be placed before the Court for proving the ownership and delivery of possession. That apart, the plaintiff even did not produce certified copy of the original sale deed on record, in order to have the secondary evidence before the Court but what was produced was photo copy of the original alleged sale deed which was not exhibited or admitted in evidence, but given article. Therefore, the requirement of proof as admissible evidence is lacking in this case and the plaintiff miserably failed to prove that she became the owner by virtue of the sale deed dated 25.6.1991. The plaintiff having thus failed to produce the sale deed, it could not consequently be proved that there was any recital in the same about the delivery of possession. Therefore the document, namely, the sale-deed, would have proved the ownership as well as title and possession of the respondent/plaintiff; but the plaintiff chose to keep it away from the Court though it was possible to bring and prove the same. The question No. 1 is therefore answered in the negative.

As regards Question No. 2, I have perused the plaint as well as written statement carefully. The averments in the plaint is that the sale deed was executed on 25.6.1991 and the plaintiff was in possession for last three years before filing of the suit. The suit was filed because there was a threat imparted on 3.11.1992 and after the legal notice (Exh.72) was issued about it. The notice (Exh.72) dated 13.10.1992 also shows that the respondent/plaintiff was in possession for the last three years. The averment in the notice Exh.72 as well as in the suit that was filed on 18.11.1992 that the respondent was in possession for the last three years, is clearly false because the sale deed is said to be the date 25.6.1991 and the suit was instituted on 18.11.1992 i.e. after one year and five months. It is difficult to countenance as to how the plaintiff came in possession three years prior to filing of the suit or notice Exh.72. It is then seen in the evidence that the suit property was situated at a distance of 40 kms away from Akola town where the respondent/plaintiff resides and that she is a money lender lending money at high rate of interest, to farmers and needy people without any money lending licence. It is then stated in the written statement that possession was never handed over though the sale deed was executed, obviously because the transaction was of money lending. The plaint averments were never amended or any pleadings contrary to the defence were brought. The sale deed not being brought on record, whether the possession was delivered on the same day of the sale deed or earlier or thereafter is not to be seen anywhere on the record and that could be best piece of documentary evidence to find out whether the possession was really given or not. That apart, the sale deed is said to be dated 25.6.1991 and the agricultural year would end by April 1992 and if the possession was really handed over at the time of sale deed on 25.6.1991, the entry for the agricultural year 1991 -92 must show the possession of the respondent/plaintiff; but that is not so. There is no document whatsoever on record to show the possession of the respondent/plaintiff for the agricultural year 1991-92 but there is a document on record i.e. 7/12 extract showing her possession for the agricultural year 1992-93. In other words, the contention that the possession was given at the time of sale deed on 25.6.1991 itself, must be held to be clearly wrong. There is, therefore, reason to hold that the alleged sale deed was executed but possession was not handed over and it was the appellant/defendant who remained in possession. The only reason for not delivering the possession upon execution of the alleged sale deed, appears to be probable nature of the transaction namely, money lending transaction. The appellant had led his evidence and evidence of one Rameshwar (DW 3) as his witness, in order to support the theory that the respondent was indulging in money lending transaction without licence and was taking documents accordingly from farmers or others. It would be appropriate to quote the evidence of Rameshwar (DW 3) for defendant, the relevant portion of which reads thus :

"1.I know the plaintiff and defendant. I know all the sons of the plaintiff. Out of those sons -Ratanseth is sitting in the court hall. I do cultivation work. Similarly I have the licence of Fair Price shop and I run the said shop. I used to take money on interest from the plaintiff and her sons. The rate of interest of the loan is Rs. 10/- per hundred per month. About ten years ago, I had borrowed an amount of Rs. 10,000/- from the plaintiff. They had taken my signatures on the blank stamp paper and executed the earnest note and submitted the same before the Civil Judge, Senior Division. Compromise has taken place in the said suit. I paid Rs. 18,000/- to the plaintiff and settled the matter. In that earnest note, my agricultural land admeasuring 9 acres was got written. The said transaction between myself and the plaintiff was the part of money lending business. I do not know what business Banarasibai and her son is doing at this time. But during that period they were giving money on interest.

About 7 to 8 years ago, there was some money transactions between the defendant and Banarasibai over the Fair price Shop. Atmaram was running a Fair Price Shop. Since Atmaram was running a Fair Price Shop, I know him. This transaction with Atmaram was similar to that of the transaction with me.

Banarasibai had given the money on interest to 1) Gavai of village Bizora; 2) Gavai from village Sukoda; 3) Keshao Dhomle from village Koradi and 4) Jaholkar from village Mangul."

From the perusal of examination-in-chief of Rameshwar (DW 3), it clearly appears that the respondent/plaintiff was giving money to the needy persons on interest and was thus doing money lending business without license. I have carefully gone through the cross-examination of this witness and what I find is that the entire material evidence about the activity of respondent/plaintiff of money lending business has not been put to challenge at all and there is a slipshod cross-examination and the material portion has not been touched of his cross-examination. It is important to note that this evidence of Rameshwar is supported and Documents Exhs. 87, 88 and 89 which was pursis that was filed after the compromise. It is then important to note that the transaction with Rameshwar was said to have taken place on 24.1.1991 in respect of money lending; while transaction in question of sale deed is of the date 25.6.1991 i.e. difference of only five months. It is thus clear that the evidence led by the appellant/defendant about the nature of transaction namely the business of the respondent /plaintiff in doing money lending by giving money to the farmers etc. without any license was clearly proved beyond any doubt or at least preponderance of probabilities. On the contrary, there is no rebuttal evidence from respondent/plaintiff. The appellant was entitled to bring on record the circumstances leading to the execution of the document and show the real nature of transaction, in the light of the decision in the case of Gangabai vs. Chhabubai (supra). Thus, the real transaction was clearly explained and shown by appellant/defendant not only by his evidence but also from the evidence of Rameshwar (DW 3) supported with documentary evidence Exhs.86,87,88 in respect of his suit in which he was defendant and the respondent was the plaintiff. The trial Judge has relied on one more factor, namely, that the suit land was 40 kms. away from Akola town where the respondent/plaintiff resides and there was no evidence to suggest or show that the property was purchased as a transaction of sale, pure and simple. In the wake of the above evidence and in the absence of primary evidence on the basis of which the suit was filed and the nature of money lending, the question No. 2 will have to be answered in the affirmative.

Insofar as aspect of possession is concerned, I have already found while answering Question No. 2 that the record shows that possession was never handed over at the time of execution of alleged sale deed, since the same would have appeared in the 7/12 extract for the year 1991-92, but 7/12 extract for the year 1992-93 showed the possession of respondent /plaintiff, which obviously appears to have been shown by the revenue officer. But but then at any rate 7/12 extract in the absence of sale deed, will lose its complete significance about the real nature of transaction and even the aspect of possession, in the absence of any recital in the sale deed about the handing over of possession or any terms and condition regarding possession. The Court is entitled to find out from the alleged sale deed about the aspect of possession. That apart, the trial Judge recorded a detailed finding on the aspect of possession in paragraph nos. 9 and 10 in his judgment, which I quote :-

"9. It is to be noted that the suit field is about 35 to 40 kilometers away from Akola. Plaintiff is not having any agricultural implements. Hence under such circumstances she might have hired those agricultural implements from the person from this village or from the other village. Even plaintiff would have hired persons to carry out agricultural operations throughout the year along with implements. Under such circumstances the plaintiff ought to have examined such person on her behalf. But the plaintiff has miserably failed to examine those persons and to establish her possession over the suit field. Besides, the defendant by his evidence of the suit field and his family is cultivating the same. As already stated above that the version of the plaintiff in para 3 of his deposition could not be negatived by the plaintiff in the cross-examination of the defendant, it remained unchallenged. Thus, it becomes clear that even after the said so called sale-deed Article-A possession was not parted by the defendant. Thus it gives weightage to the say of the defendant that the said transaction is a money lending transaction. Had it been out and out sale then in that case the possession would have been handed over to the plaintiff. But it is clear that the said sale deed is a sort of security to the loan advanced by plaintiff. On the point of money lending, defendant has examined one Rameshwar Shriram Kakad at Exh.77. This witness has deposed that he is having a fair price shop and used to take loan from the plaintiff. Before about 10 years, he had taken loan of Rs. 12000/- and the plaintiff had obtained his signature on blank stamp paper. Thereafter, she had prepared Issar Chitthi of that stamp and had filed a civil suit against this witness. He has stated that he had paid Rs. 18000/- to the plaintiff and had settled the said civil suit. To the said aforesaid version there is no denial by the side of the plaintiff. There is no denying question in the cross-examination of this witness by the side of the plaintiff. Thus the said version of this witness remained unchallenged. Besides, this version of the D.W. 3 is also being supported by the copy of the plaint in the suit filed by Banarasibai against this witness at Exh.87. The copy of the written statement in the said suit is at Exh. 88. Withdrawal pursis Exh.34 in the said suit No. 169/1993 is also filed on this record, which is also placed at Exh.89. This pursis shows that there is compromise out of Court and plaintiff Banarasibai had withdrawn the suit. When there is no denial on the side of the plaintiff to the aforesaid version of this D.W. 3 Rameshwar Kakad, then in that case it has been proved through this witness that he had taken loan of Rs. 12000/- and signatures of this witness were obtained on a blank paper, which was converted into Issar Chitthi and then this suit came to be filed. It is further proved that this witness has paid Rs. 18000/- to the plaintiff and the said civil suit came to be compromised. I have already stated that versions of this witness D.W. 3 Rameshwar have not been negatived by the plaintiff in his cross-examination. Thus it is to be taken that those versions have been admitted by the plaintiff and did not challenge it. Thus it has been proved that there was money lending transaction in between this Rameshwar and Banarasibai. Besides, this witness has also referred to some names of other persons to whom Banarasibai had advanced loans. This,. Itself goes to show that Banarasibai was and is a money lender without licence, who is advancing loan under the garb of sale deeds and agreements of sales. Thus the version of the defendant in this case, that the loan was advanced to hereunder the garb of sale deed have turned to truth in this case. Thus, the sale deed in question is a money lending transaction and not out and out sale. Hence, the question of handing over possession to the plaintiff in consequent to the sale deed does not arise at all. Thus the plaintiff was never in possession of the suit property. The possession was with the defendant and his family.

The plaintiff appears to be very clever. Immediately after mutating the property in her name she had mortgaged the suit field to one Bhoo-vikas Bank and had encashed her loan. It appears that she was aware that she has not received possession and she will not be able to recover the loan from the defendant. Hence plff. Had mortgaged the suit property with the said Bank and by obtaining loan encashed, the loan advanced to the defendant was encashed. It was done by plaintiff with a view that when the loan remains unpaid, the said Bank will auction the suit field and the plaintiff will not have to take any pains in that respect. Thus the plaintiff has already encashed the suit transaction by obtaining loan. In fact, as the suit transaction is a loan transaction, title in the suit property cannot pass to the plaintiff."

The trial Court has thus recorded a categorical finding based on evidence about the aspect of possession and held that the respondent /plaintiff was never placed in possession. In that view of the matter, I think the Question No. 3 will have to be answered in affirmative.

Mr. Mohta, learned counsel for the respondents then raised a new question before me, praying that under Section 53A of the Transfer of Property Act, his possession is required to be protected and that relief at least should be granted in favour of respondent /plaintiff. I do not agree, firstly because the finding on possession of the trial Court, has been upheld by me that the possession was never handed over to the respondent/plaintiff and, secondly, Section 53A of the T.P. Act applies to the cases of agreement and, in no case, the Court would read alleged sale deed as agreement contemplated u/s. 53A of the T.P. Act. Here, the case of the respondent/plaintiff was of complete sale transaction and not of agreement of sale envisaged by Sec. 53A of the T.P. Act. In the wake of findings it would be difficult to apply Sec. 53A in the facts and circumstances of the preset case. I therefore find that the benefit of Section 53-A of the T.P. Act cannot be extended, as claimed by Mr. Mohta. In the result, I make the following order :-

ORDER

1) Second Appeal No. 116/2001 is allowed.

2) The judgment and decree dated 16.02.2001 in Regular Civil Appeal No. 120/1999 passed by learned 4th Additional District Judge, Akola, is set aside.

3) The judgment and decree dated 30.03.1999 in Regular Civil Suit No. 664/1992 passed by learned 3rd Joint Civil Judge, Junior Division, Akola, is restored.

4) No order as to costs.