MOHAN vs THE STATE OF M.P.

This appeal by the plaintiff under Section 96 of the Code of Civil Procedure (hereinafter referred to as CPC) is directed against the judgment and decree dated 08/12/1999 passed in Civil suit No. 3-A/1995 by the II Additional District Judge, Shivpuri (M.P.).

Facts relevant and necessary for decision of the appeal are that the appellant/plaintiff filed a civil suit for declaration, cancellation of the sale deed dated 10/01/1994 and for permanent injunction. The plaintiff was in need of money, therefore, on 10/01/1994 he had

taken loan of Rs. 34,500/- from respondents/defendant Nos. 1 to3. As a security for the said loan, the plaintiff had entered into a registered sale deed in respect of land situated in survey No. 84, area 9 Bigha 3 Vishwa (1.912 Hectres) having the boundaries as follows :-

East : Arjun Singh''s land

West: Nathuram Goshi''s land

North: Kishanlal''s land

South: Chhiddi Chamar''s land

The intention was that the sale deed is ostensible and is in lieu of security for loan. The possession of the suit land was not delivered to the defendants and the plaintiff continues to be in possession. The price of the land is much higher than the amount received by the plaintiff. Therefore, the registered sale deed was not acted upon. The suit property continued in the name of the plaintiffs in the revenue record as Bhumiswami and the defendants did not even seek mutation in the revenue record.

The defendants in contravention of the aforesaid terms and conditions are trying to sell the suit land under the garb of the nominal and fictitious sale deed, although the plaintiffs is prepared to repay the loan amount. The plaintiff instituted the suit for following reliefs :-

(a) It be declared that the plaintiff/appellant is Bhumiswami in possession of the suit land and the defendant Nos. 1 to 3 have no concern with it.

(b) The alleged registered sale deed dated 10/01/1994 may be declared null, void and ineffective as against the plaintiff and the defendant Nos. 1 to 3 did not acquire any title in respect of the suit land on the basis of the alleged sale deed dated 10/01/1994.

(c) Defendant Nos. 1 to 3 be restrained from seeking mutation on the basis of the alleged sale deed dated 10/01/1994. They may be further restrained by issuance of a decree of perpetual injunction from alienating the suit land.

The defendants/respondent Nos. 1 to 3 denied the claim of the plaintiff by submitting their joint written statement contending inter-alia that :-

(i) The document dated 10/01/1994 is a registered sale deed and an outright sale was effected through this document. The plaintiff transferred the title as well as the possession of the suit land through the registered sale deed dated 10/01/1994. The transaction was not of loan but was of out right sale. The plaintiff did not obtain any loan but had received a consideration of Rs. 75,000/- as price of the disputed land. The mutation in their favor was allowed on 07/05/1994. (ii) The plaintiff after executing the sale deed did not remain in possession of the suit land. On the contrary, the defendants have been continuing in possession of the suit land from the date of the purchase.

Therefore, the suit is liable to be dismissed.

The learned Trial Judge framed the following issues :-

"VERNACULAR MATTER OMITTED"

The present appellants have filed the suit for declaration, cancellation of sale deed dated 10/01/1994 and for permanent injunction, inter-alia contending that the defendants have acquired title, right and interest over the suit land on the basis of a nominal and fictitious registered sale deed executed in lieu of the security of

loan on a condition that on repayment, the document becomes rendered/ infructuous.

The appellant have challenged the order on the followings grounds :-

(i) The impugned judgment and decree are factually incorrect and legally untenable.

(ii) The learned trial judge has not correctly decided the issue No.1. The plaintiff has expressly and specifically pleaded in the plaint that he had obtained a loan of Rs. 34,500/- from Jankilal & Khuman on 10/01/1994 and had executed a registered deed for creating a mortgage as a collateral security. The plaintiff and the attesting witnesses have established the case. Therefore, the learned trial Judge ought to have decided the issue No.1 in favor of the plaintiff/appellant.

(iii) The learned Trial Judge has fallen in error in overlooking that it is not the apparent tenor of the document but the real intention of the parties which is decisive of the nature of transaction. It is established on record that Jankilal & Khuman were engaged in the business of money lending and the plaintiff had such dealings with them. From the statements of plaintiff and the attesting witness Haricharan, it is duly proved that the plaintiff had obtained a loan and the alleged registered sale deed was got executed by way of collateral security for creation of mortgage. Another attesting witness Ramesh has also confirmed the money lending business of Jankilal & others. Thus, the real intention of the parties behind the transaction is of loan and the learned Trial Judge has erred in taking a

contrary view.

(iv) The plaintiff/appellant has expressly and specifically pleaded to have obtained a loan from Jankilal & Khuman and has further pleaded to have executed a nominal and fictitious sale deed as per their desire/ instructions. The plaintiff was in need of money and the lenders were in dominating capacity. Therefore, the plaintiff was under a compulsion to execute the deed as per their instructions in order to receive the loan amount. The learned Trial Judge ought to have adjudged the issue from correct perspective.

(v) The plaintiff/appellant continued in the possession of the suit land as Bhumiswami because the alleged registered sale deed Ex.P-1 was merely nominal and fictitious and was not meant to be acted upon. The plaintiff has proved his possession on the suit land whereas the defendants have failed to prove the delivery of possession of the suit land and in pursuance of the alleged sale deed. Therefore, also, the transaction is infact in the nature of loan and not of out right sale. The learned Trial Court has committed an illegality in holding contrary.

(vi) The learned Trial Judge has erred in overlooking that the recital about delivery of possession is merely a formality which is bound to be there in view of the nature of the deed.

(vii) The plaintiff has expressly averred to have obtained loan from Jankilal and Khuman. The defendants did not examine Khuman for no justiciable reason on record. Therefore, an adverse inference is liable to be

drawn against them and the learned Trial Judge ought to have decreed the suit.

(viii) The learned Trial Judge has further erred in misconstruing/misinterpreting the documents contained in Ex.P-2 and P-3. Therefore, the findings on issue No.1 of the learned Trial Judge are incorrect, illegal and perverse and are not liable to be maintained.

(ix) The alleged consideration as mentioned in the registered sale deed dated 10/01/1994 was not fully paid to the plaintiff as stated on oath by the plaintiff himself and his witness. The discrepancy in the amount of consideration as stated by PWs and defendants witnesses is also decisive of the nature of transaction that it was not an outright sale.

(x) The attesting witness Ramesh Chand has clearly stated that the plaintiff owed money to him and therefore, he took the plaintiff to Jankilal etc. He was thus a mediator who issued the notice Ex.P.3 to the plaintiff for repayment. This notice is also proved by the concerning advocate (P.W.3). A similar notice Ex.P.2 was also issued by another attesting witness (P.W.2). The learned trial Judge has not properly appreciated these notices in the light of statements of the witnesses. Therefore, his findings have become illegal, incorrect, arbitrary and perverse.

(xi) The market price of the suit property was Rs. 1 lac and it''s sale for a meagre sum of Rs. 34,500/- is beyond human probability. The Hon''ble Supreme Court of India has already expressed it''s concern over such transaction. The money lenders have become wiser and

they take undue advantage by the documentation of their choice. It is high time that a person under compelling circumstances should be freed from the clutches of such money lenders who try to grab the property of needy persons by entering into a nominal and fictitious through apparently a sale transaction.

(xii) The learned Trial Judge has erred in law that the mutation in favor of the defendants is of no avail since the same was effected without serving a notice on the plaintiff who happened to be a recorded Bhumiswami. In view of the statement on oath by the plaintiff, it was incumbent upon the defendants to prove that the plaintiff was served with a notice in the mutation proceedings.

(xiii) The findings on issue Nos. 2 to 4 are also incorrect and illegal due to the aforesaid facts and grounds. The suit of the plaintiff ought to have been decreed.

(xiv) The impugned judgment and decree are outcome of non-reading and/or misreading of the material oral and documentary evidence on record and also on account of wrong approach of law.

It is contended on behalf of the respondents/defendants that the plaintiff is neither the owner nor in possession. Consequent upon execution of the sale deed Ex.D-1, payment was made and as a result the possession of the suit land was handed over to the respondents. The land was also mutated in the name of defendants. It was further contended that in view of Section 91 and 92 of the Evidence Act, 1872, the appellant is estopped to say what is contrary to the

recital of the sale deed. As per Section 92 of the Evidence Act no oral evidence is admissible. As such the plaintiff''s are not entitled for declaration, cancellation of sale deed and permanent injunction, as claimed in the plaint.

While deciding issue No.1,2 and 3 the trial Court came to the conclusion that sale deed Ex.P.1 is admitted. The burden is on the plaintiff to prove that loan was taken to be repaid alongwith interest and that the possession remained with the plaintiff. Such averment of the plaintiff is neither supported by the language of the sale deed nor by the statement of Rameshchand (P.W.4). The sale deed was executed with the sole intention to sell the land. The mutation has been done in favor of the defendants. No objection whatsoever was raised at the time of mutation which goes to show that intention was to sell the land. On careful appreciation of the evidence on record and on the basis of sale deed, it is clearly established that the possession of the suit land is with the defendants. Accordingly , issue No. 1 to 4 has been answered in the negative and dismissed the suit.

While answering the issue Nos. 1 to 4, the trial Court has relied upon the registered sale deed (Ex.D.1) which shows that the suit land has been sold to the defendants for a consideration of Rs. 75,000/- and the possession has been handed over. The sale deed also mentions that the plaintiff has received the sale- consideration of Rs. 75,000/-. This fact is corroborated by the (D.W.1) Jankilal, (P.W.4) Rameshchand and (P.W.2) Haricharan Shivhare. The statement of (P.W.1) Murari Lal does not appear to be trustworthy. The plaintiff has failed to prove that the sale deed was executed in lieu of the security of loan on a condition that on repayment, the sale deed would become redundant/infructuous.

After hearing the learned counsel for the parties and perusal of the record, pleadings and evidence, oral and documentary, this Court has no hesitation to hold that the plaintiff has received the sale consideration and as such does not have any right, title and interest in the suit property. The trial Court has rightly come to the conclusion which is based on oral and documentary evidence available on record. Accordingly, the suit has been rightly dismissed. As a consequence, the appeal fails and is hereby dismissed.

No order as to cost.