Sheikh Baboo vs Madanlal Jaiswal and Another

N.K. Agarwal, J.—This is defendant''s Second Appeal filed u/s 100 of C.P.C. against the judgment and decree dated 10-7-1995 passed by the First Additional District Judge, Bilaspur, in Civil Appeal No. 12-A/ 86, reversing the judgment and decree dated 14-08-1986, passed by IVth Civil Judges, Class II, Bilaspur, in Civil Suit No. 46-A/85. Facts in brief are as under :

(i) Respondent No. 1/plaintiff filed a suit for possession of suit property bearing Khasra No. 317/2, area 1.7 acre situated at village Barar, Tahsil & District Bilaspur.

(ii) The suit was dismissed by the trial Court finding inter alia, the appellant did not execute the deed (Ex. P-2) with an intention to sell the suit property but was executed by him as a security of loan.

(iii) On an appeal filed by the respondent No. 1/plaintiff, the First Appellate Court reversed the finding of the trial Court and decreed the plaintiff''s suit for possession of suit property holding : the transaction was not a loan transaction but was a transaction of sale.

This appeal was admitted for hearing by this Court on the following substantial question of law:

Whether alleged Ex. P-1 is outright sale deed or document executed for security of loan?

Shri Ahmed Hussain, learned counsel appearing for the appellant would submit: the sale deed (Ex. P-1) was executed by appellant in favour of the plaintiff as a collateral security of loan taken by him; it was nominal transaction and was never intended to be acted upon; the suit property still stands recorded in the name of appellant; the appellant remained in possession of the suit property even after execution of sale-deed (Ex. P-1), the trial Court has rightly dismissed the plaintiff''s suit holding the transaction to be loan transaction, however, the First Appellate Court erroneously reversed the finding and decreed the plaintiff''s suit. He also placed his reliance upon the judgment of Supreme Court in case of Chennammal Vs. Munimalaiyan and Others, .

I have heard the counsel appearing for the appellant and perused the records of both the Courts below including judgment and decree impugned.

Execution of sale deed (Ex. P-1) has not been denied by the appellant. As per recital of the sale deed (Ex. P-1), after receipt of adequate sale consideration of Rs. 1,000/- the appellant sold the suit land and executed sale deed (Ex. P-2) in plaintiff''s favour and also delivered its possession to him.

The Supreme Court in case of Chennammal (supra) while interpreting the terms of documents has held : transaction in question was a mortgaged by conditional sale within the meaning of Section 58(c) of the Transfer of Property Act, 1882 and not a document of sale with a condition of re-purchase. The same is not the case here. Here in the instant case, recital of sale-deed (Ex. P-1) clearly establishes the factum of sale, it is neither document of mortgage by conditional sale nor a document of mortgage with the condition of re-purchase, and the ratio of law laid down by the Supreme Court in the above case, is of no help to the appellant.

Therefore, the real question which arises for determination of this Court is whether the sale deed (Ex. P-1) is an outright sale or the transaction was loan transaction and the sale deed was executed by the appellant as a collateral security to the loan taken by him from the plaintiff.

True, Section 92 of the Evidence Act does not preclude a party from showing that the writing is not really a contract between the parties but was only a fictitious or colourable device which cloaked something else and oral evidence is admissible to show that transaction was only sham or nominal transaction and was not intended to be acted upon. However, to prove the above fact, heavy burden lies upon the appellant/defendant and such a defence should be accepted only with great caution, for, a registered document is obtained with the intention that it represents a bona fide transaction and is intended to be acted upon and it would be valueless if it can be gone behind in every case by mere assertion that which was stated at the time before the Registrar was untrue. The onus in such a case would be clearly on the defendant, as observed by the Division Bench of the High Court of Madhya Pradesh in case of Mandas v. Manabai reported in 1972 MPLJ page 852.

Now reverting to the facts of the present case, admittedly the question of possession of the suit land and of mutation were all along subject-matter of dispute between the parties, inasmuch as, the appellant approached the Criminal Court u/s 145 of the Cr. P.C. It is also not in dispute the appellant was found in possession of the suit land in the above proceedings u/s 145 of the Cr. P.C. and the instant suit has been instituted by the plaintiff for his claim of possession of the suit land based on title against the appellant during pendency of above proceeding before the High Court.

The entries in khasra Panchshala (Ex. P-3) in the matter of possession were also in favour of the respondent/plaintiff. Vide order dated 23-4-1982 (Ex. P-4), the revenue authorities declined to declare the sale transaction as loan transaction.

As per statement of Rambilas (PW-4), he cultivated the suit land in the year 1977-79 on behalf of plaintiff Madanlal Jaiswal. The above evidence stands unrebutted. Appellant Sheikh Baboo (DW-1) in his examination-in-chief, paragraph 6 has stated "when he approached the plaintiff to refund the amount then plaintiff told him, this year he has cultivated the land and after getting the crop, he will return the land to him". The above statement goes to show, plaintiff''s possession over the suit land at least at that point of time. The appellant further deposed in paragraphs 8 & 10 of his statement: "When Registrar asked him whether he is selling land, he said yes"; For two years, he was cultivating the land on behalf of the plaintiff, he used to give the crop to the plaintiff.

Although, the appellant was entitled to show by leading evidence that the transaction was only a sham or nominal transaction and was not intended to be acted upon and the sale deed (Ex. P-1) was executed by him as a collateral security to the loan taken by him but he utterly failed to substantiate the same by adducing legal and cogent evidence there for, in the absence whereof, a registered sale-deed cannot be termed as nominal transaction. On the other hand, plaintiff had successfully proved his title by proving registered sale deed executed by appellant in his favour. When the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendant proves circumstances, showing the sale deed as fictitious one or colourable device, which cloaked something else, the plaintiff cannot be non suited.

For the reasons mentioned hereinabove, I do not find any infirmity in the approach of first Appellate Court in decreeing the plaintiff''s suit. The substantial question of law formulated by this Court is answered accordingly in favour of respondent No. 1/ plaintiff.

In the result, the appeal fails and is dismissed. No order as to costs. A decree be drawn accordingly.