Second Appeal No.3 of 1996

20th December, 2007

Petitioner Counsel: Mr. N. S. BHATTAD
Respondent Counsel: Mr. PALIWAL

Cases Cited:
Rita Premchand Vs. State of Maharashtra, 2002(1) ALL MR 461 =2001(4) Mh.L.J. 671 [Para 10]
Vinayakajppa Sury Vs. Dulichand Murarka, 1987 Mh.L.J. 274 [Para 10]
S. Rangaraju Naidu Vs. S. Thiruvarakkarasu, AIR 1995 SC 1769 [Para 1]
Shalinibai Vs. Narayan, 2006(6) ALL MR 369 =2006(6) Mh.L.J. 752 [Para 12]

JUDGMENT

JUDGMENT :- The appellants/defendants, who lost in both the courts below have preferred this second appeal.

2. The facts giving rise to this appeal are as under -

The subject matter of the suit is 7 acres out of gat No.91 of village Sawargaon Teli in Buldhana district. Defendant no.1 is the mother of defendant nos.2 to 5. Defendant no.1's husband and defendants no.2 to 5's father had sold the said field to the plaintiff on 7/1/1955. The said field has been in possession of the plaintiff since then continuously. However, in the year 1986-87, the defendants illegally took possession of the suit field from the plaintiff. The plaintiff, therefore, instituted suit for possession and damages.

3. The defendants resisted the suit and denied that they have forcibly taken possession of the suit field. Their contention is that Bhanudas - the deceased had borrowed a sum of Rs.500/- from the plaintiff. He could not repay that amount. Since he could not repay the amount of Rs.500/-, the plaintiff added Rs.1000/- towards interest and obtained a nominal sale-deed in his favour on 7/1/1955. The said sale-deed was executed by said Bhanudas by way of security. Further it is the contention of the defendants that it was agreed that the sale-deed was never to be acted upon. Loan was agreed to be paid at the interest at savai rate. It was further agreed that as soon as the amount is repaid, the plaintiff would reconvey the field to Bhanudas. The defendants several times requested the plaintiff to convey the field to them but plaintiff avoided to do so. Further the defendants' contention is that they repaid sum of Rs.1,850/- to the plaintiff in the year 1956 itself. The plaintiff refused to execute the sale-deed i.e. reconveyance and said that since amount has already been paid and since the defendants are already in possession, there was no problem even if reconveyance-deed is not executed. The defendants also contended that they are in adverse possession of the suit property.

4. On these pleadings, the learned judge of the trial court framed issues. He found that the transaction between the plaintiff and defendants is not of money lending. That the plaintiff was dispossessed and he was in possession of the suit property since 1955. There was no agreement of reconveyance and holding so, he dismissed the suit. The appellate court also upheld the finding of the trial court and dismissed the appeal. Being aggrieved by that, this appeal has been preferred.

5. I have heard the learned counsel for the appellants-defendants and respondent-plaintiff. This appeal was admitted by passing the following order.

"Admit as substantial question of law as raised in memo of appeal arise for consideration. Ad interim stay as prayed in C.A.No.4-A of 1996."

There are as many as 10 grounds mentioned in the memo of appeal. The substantial questions of law that could be formulated are as under -

i) Whether suit simplicitor for possession without declaration is tenable ?

ii) Whether the transaction in suit was of money lending and therefore the sale-deed was never agreed to be acted upon?

iii) Was the suit filed within limitation ?

6. The learned counsel for the appellants-defendants submitted that the suit simplicitor for possession was not maintenable and plaintiff should have also sought relief for declaration. The argument of the learned counsel for the appellant-defendant has no substance. It is the case of the plaintiff that he is the owner on the basis of the sale-deed of 1955 and he was dispossessed. Since the plaintiff claims to be owner and was dispossessed, he can certainly sue for possession on the basis of title. The suit simplicitor for possession as such is maintenable but suit simplicitor for declaration may not be maintenable where further relief may be available to the party.

7. The plaintiff claims that he had purchased suit field from the husband of defendant no.1 by name Bhanudas by sale-deed dated 7/1/1955. The defendants raised a plea that it was a loan transaction and there was a contemporaneous agreement of reconveyance of repayment of loan. It is also the contention of the defendants that the sale-deed was not to be acted upon as such and the document was nominal. The pleas are two-fold and they are inconsistent. If the sale-deed was nominal and not to be acted upon, then no title intended to pass. But if there was a contemporaneous agreement as is pleaded by the defendants themselves, then the title was certainly intended to pass in favour of the plaintiff with the right to defendants to repay and then seek reconveyance of the field in their favour. Therefore, unless and until the title passes in favour of the plaintiff, there could be no reconveyance. The plea that it was not to be acted upon as a sale-deed and no title was intended to pass cannot go hand in hand with the other plea. Be that as it may. The learned counsel for the appellant contended that the transaction in suit was essentially a transaction of money lending. He invited my attention to the contents of the sale deed (Exh.69). He submitted that prior to this transaction there was similar type of transaction such as a sale-deed with condition to repurchase and Bhanudas . husband of defendant no.1 could not repay Rs.2,000/- of that transaction and that amount of Rs.2,000/- was adjusted towards consideration of this field. The word used in the sale-deed (Exh.69) in respect of the earlier sale-deed is karar Kharedi i.e. a sale deed with condition to repurchase. This recital at the most would show that there was a conditional sale-deed. It does not necessarily go to show that it was a loan transaction. Assuming that to be a loan transaction, this necessarily does not become so. Had this been a sale-deed with condition of repurchase, the condition could have been incorporated in the sale-deed itself or there could have been a separate written agreement.

8. The fact that the defendants plead of reconveyance of the suit property suggests that they want to make out a case of reconveyance upon repayment of the amount taken by them. Defendants specifically plead that in Hangam of 1956 Bhanudas himself repaid Rs.1,850/- and requested the plaintiff to reconvey the field but plaintiff avoided saying that there is no need since possession was already with Bhanudas and the amount has been repaid. Obviously, the pleading is of request to plaintiff to reconvey by Bhanudas and Bhanudas himself repaying the amount. The evidence, however, appears to be inconsistent with the pleadings. DW-1 Laxman who is defendant no.2 has stated that he himself in presence of Kundlik and Dharma repaid Rs.1,850/- to plaintiff and demanded back from him the sale deed. He states that the plaintiff did not give back the sale deed saying that since they had transaction for generations, he would not cheat them. When it is pleaded that Bhanudas repaid the amount, it could not be shown that defendant no.2 repaid. It is admitted by DW-1 that his father was then alive and he himself used to look after the transaction. The transaction in suit is of 1955. He says that at the time of transaction he was 15 to 16 years old. It is quite improbable that when father was alive and was looking after transaction, Bhanudas would send his son to repay the amount when he could be said to be just 15 years old. There is a certified copy of birth Certificate of DW-1 Laxman which shows his date of birth to be 29/8/1949. He was thus only 6 to 7 years old when this transaction had taken place. It is, therefore, clear that he could not have any personal knowledge of the transaction and he had not even attained that age to understand such transaction. Further the evidence is inconsistent because of the fact that DW-1 says that he demanded back the sale-deed in possession of the plaintiff. There was no question of demanding back the sale-deed and there is no such pleading. The pleading is of request to reconvey and avoidance. DW-1 Laxman does not say that he asked the plaintiff to reconvey the field in his favour by executing a sale-deed. The pleading and evidence being at variance, the evidence has to be rejected. The defendants due to such variance in pleading and proof must be said to have failed to make out the case pleaded.

9. Even the evidence led by defendants that plaintiff came to their house and demanded Rs.1,000/- and since they were unable to repay, plaintiff insisted upon execution of the fresh sale-deed as a money lending transaction, is completely without pleading. Not only it is without pleading but the witnesses give inconsistent version. DW-1 Laxman says in cross-examination that the plaintiff had come for above talks at his house at 4.30 p.m. and it was a Winter season. Kundlik, who, according to DW-1 Laxman, was present at the time of the incident, on the other hand says that the talk took place in the Summer and that too in the morning. This inconsistency clearly shows that both of them are telling lies. Both these witnesses were confronted with their previous statements recorded by the Tahsildar. They resiled from those statements partially. It is thus further clear that they are not at all worthy of any credit. This evidence that the plaintiff came and demanded Rs.1,000/- and therefore Bhanudas executed a sale-deed by way of security is not worthy of credit.

10. Shri. Bhattad, learned counsel for the appellants/defendants contended that suit property was continuously in possession of the defendants and they never parted with the possession and this circumstance alone is enough to hold that the transaction was of money lending and was not to be acted upon. The plaintiff has filed the crop statements from the year 1955 onwards. Right from 1955 to 1980-81 the only name that appears in cultivators column is that of the plaintiff. Exh.44 is crop statement for 1980-81 to 1989-90. In this for the first time the name of the defendants' father appears and that too with the plaintiff. From 1984 to 1990, however, the name of the defendant alone appears. It is thus clear that defendants were not in possession from 1955 to 1981 at least. There is no explanation how crop statement for more than 25 years continuously were in the name of the plaintiff and this falsifies the story of possession not being delivered to the plaintiff. Shri. Bhattad, learned counsel, submitted that the crop statements have no value. He relied upon decision of this court in 2001(4) Mh.L.J. 671 : [2002(1) ALL MR 461] (Rita Premchand and another Vs. State of Maharashtra and ors.). What has been held in this decision is that revenue records prove no title and entries are made for fiscal purpose only. In the instant case the plaintiff is not seeking to prove title on the basis of revenue record alone. He has based his title on the sale deed. What he is trying to establish from this revenue record is his possession. The law is well established that the crop statements have a presumptive value and they can certainly be used to prove factum of possession as a piece of evidence. The crop statements consistently prove the possession of the plaintiff from 1955 to 1981 and there is also a clear recital in the sale-deed that the possession was delivered to the plaintiff then that recital is corroborated by the entires in the crop statements. The story of the defendants that possession was not delivered to the plaintiffs, therefore, has to be rejected. Shri. Bhattad then contended that the price of the field was shown too inadequate which suggests that it was a money lending transaction. In 1955, the field is purchased for Rs.3,500/-. It was contended that the field was worth Rs.10,000/- per acre. Firstly, there is no pleading of inadequacy of price, secondly, besides bare words of DW-1 Laxman, there is no evidence about the price of a similar field. It must be established by placing on record the sale-deeds of those years and the nearby fields. There is no such evidence on record at all. Mr. Bhattad had put reliance on a decision reported in 1987 Mh.L.J. 274 (Vinayakajppa Sury Vs. Dulichand Murarka) contending that whenever there is any inadequacy of price, the transaction should be treated as one of money lending. This decision cannot have any bearing on the case since there is absolutely no evidence about the inadequacy of the price.

11. Shri. Bhattad, learned counsel, contended that in the instant case it is clear from the evidence that prior to the transaction in question there was another transaction of conditional sale and this transaction is entered into in continuation of the earlier one. The earlier being conditional sale it cannot be inferred that this is also money lending transaction. Learned counsel had relied upon another decision of the Supreme Court reported in AIR 1995 SC 1769 (S. Rangaraju Naidu Vs. S. Thiruvarakkarasu). This decision has also no bearing on the case at hand. In that case, the main question that arose before the court was whether a decree for Specific Performance could be passed when it was found that agreement of sale came to be executed on the same day for discharge of the debt on which a promissory note was executed. Such are not the facts here. The court found that in such cases the court had rightly exercised the discretion in not granting decree for specific performance.

12. The next decision on which reliance is placed is reported in 2006(6) Mh.L.J. 752 : [2006(6) ALL MR 369] Shalinibai Vs. Narayan and ors.). In the reported case, there was a contemporaneous written agreement to re convey. In the instant case there was no written agreement. The evidence of defendant about such oral agreement is found to be not worthy of credit at all. Further the defendant had parted with possession from 1955 and did not claim back possession and seem to have taken it back forcibly in 1982-83. In that case, the possession of the land was given so that the lender could appropriate the usufruct. Had this also been a money lending transaction, the defendant would not have parted with possession at all. Further the theory of delivery of possession has to be negatived on account of the fact that the defendants plead that they had agreed to pay interest at savai rate. It is difficult to accept that a person who parts with the possession, allows the lender to take the crop from the field would also pay interest on the amount. If one agrees to pay the interest on the amount, there is no question of parting with the possession and it is in this background that I find that the possession was delivered to the plaintiff. Any borrower would do either of the thing i.e. part with the possession and allow the lender to appropriate the usufruct or to pay the interest and retain the possession with himself. The decision has no application on facts. The learned Additional District Judge rightly found that the transaction was not at all of money lending and decreed the suit rightly.

13. The last question that needs consideration is limitation. It is found that the plaintiff was put in possession of the property. The crop statements (Exh.44) shows that the plaintiff was dispossessed at the most in 1981-82. The suit is filed on 31/3/1989. It is filed within 12 years of dispossession. Hence, it is within limitation. I therefore, do not find any substance in the appeal. The questions are answered accordingly and the appeal is dismissed with costs.

Appeal dismissed.