1 sa400.12.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.400 OF 2012

Janardan s/o. Kisanaji Parbat,

Aged 32 years, Occ. Cultivator,
r/o. Wagholi, Tahsil Hinganghat,
District Wardha. …....... APPELLANT

// VERSUS //

1.Sau.Rekha w/o. Marotrao Parbat,

Aged 47 years, Occ. Cultivator.

2.Bharat s/o. Marotrao Parbat,

Aged 26 years, Occ. Cultivator.

3.Marotrao s/o. Keshav Parbat,

Aged 53 years, Occ. Cultivator.

All r/o. Wagholi, Tahsil

Hinganghat, District Wardha. …....... RESPONDENTS

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____________________________________________________________
Mr.S.P.Hedaoo, Advocate for the Appellant.
Mr.Rahul Bhangde, Advocate for Respondent Nos.1 to 3.
____________________________________________________________

***************
Date of reserving the Judgment : 14.9.2020.
Date of pronouncement of the Judgment : 29.9.2020.
***************

CORAM : M.G.GIRATKAR, JJ.

JUDGMENT :

1. This Second Appeal is filed by the Original

Plaintiff/appellant herein, who had filed Regular Civil Suit No.73

of 2007. The Civil Suit came to be dismissed on 28 th March,

2010. Regular Civil Appeal No.274 of 2010 was filed by the

Original Plaintiff before the District Judge, Wardha. The said

appeal is also dismissed on 20.4.2012. Hence, the present

appeal is filed by the said Original Plaintiff/appellant against the

concurrent findings of both the Courts below.

2. The case of plaintiff/appellant, in short, is that

defendant nos. 1 and 2 are owners of field bearing Survey Nos.

171 and 172, total area 3.65 HR. of mouza Wagholi, Tq.

Higanghat. Defendant nos. 1 and 2 agreed to sell 1.01 HR land

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out of said land for a consideration of Rs.91,000/-. Oral

agreement to that effect took place on the day of Gudi Padwa of

the year 2006. The plaintiff paid earnest amount of Rs.20,000/-

to the defendants. The defendants handed over possession of

1.01 HR. land out of Survey Nos. 171 and 172 to the plaintiff.

The sale deed was to be executed on 3.11.2006, after payment

of balance consideration. The defendants agreed to convert the

said land into Class I and thereafter, sale deed was to be

executed. But, till 3.10.2006, the defendants did not apply for

conversion of the land. They were in need of money for the

education of defendant no.2. Therefore, they obtained

Rs.70,000/- from the plaintiff as a part payment of consideration

and executed a registered agreement of sell on 4.10.2006 in

favour of the plaintiff. Balance consideration of Rs.1,000/- was to

be paid at the time of sale deed. The defendants failed to

execute the sale deed. Therefore, Regular Civil Suit No.73/2007

was filed for specific performance of contract and permanent

injunction against the defendants.

3. The defendants/respondents appeared and filed their

Written Statement at Exh.18 and submitted that they never

executed agreement of sell to the plaintiff. Father of plaintiff is

money lender. The defendants were in need of money.

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Therefore, they obtained hand loan of Rs.40,000/- from the

father of plaintiff. The father of plaintiff got executed nominal

document of sell dt.4.10.2006 towards security of loan. The said

document was executed in the name of plaintiff. Due to failure

of crop, the defendants could not repay the loan amount. They

have submitted that they never handed over possession to the

plaintiff. They are in possession of the suit field. Therefore, they

prayed to dismiss the suit.

4. Learned Civil Judge (Jr.Dn.), Hinganghat framed

issues. Both the parties adduced their evidence. The trial Court

as well as the first Appellate Court came to the conclusion that

the plaintiff failed to prove that defendants agreed to sell suit

land. The evidence of plaintiff and his witnesses is contradictory.

Therefore, both the Courts came to the conclusion that it was not

agreement to sell, but it was the document executed towards

security in respect of loan amount of Rs.40,000/-. Therefore,

both the Courts recorded findings against the appellant.

5. This Court has admitted this appeal on 18 th February,

2013 on the following substantial questions of law :

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(a) Whether the courts below were right in holding

that the agreement to sell dated 03.10.2006 has been

proved?

(b) Whether the courts below were right in holding

that the agreement dated 03.10.2006 was a nominal

transaction and it was not to be acted upon particularly

when the courts below have held that the execution of the

said agreement is admitted by the defendants ?

6. Heard Mr.S.P.Hedaoo, learned Counsel for the

appellant. He has pointed out agreement to sell (Exh.35) and

submitted that it is a registered document and therefore, oral

evidence to contradict contents of document is not permissible.

Learned Counsel has submitted that plaintiff has paid

Rs.90,000/- to the defendants. The defendants failed to execute

the sale deed. It is, therefore, prayed to allow the appeal and

grant decree of specific performance against the defendants.

The learned Counsel has submitted that the findings recorded by

the trial Court are illegal and therefore, Judgment of both the

Courts below are liable to be quashed and set aside.

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7. Heard Mr.Rahul Bhangde, learned Counsel for the

respondents. He has submitted that the evidence of plaintiff and

his witnesses is not reliable. There is material contradiction in

respect of payment of earnest money and execution of

documents. There is material contradiction in respect of

situation of suit field etc. Therefore, the learned trial Court has

rightly come to the conclusion that the plaintiff has failed to

prove his case. The learned Counsel has submitted that though

document (Exh.35) is a registered document, that does not

mean that oral evidence to contradict the contents cannot be

permitted. He has pointed out the Judgment of this Court in the

case of Vithal Saidu Lokhande .vs. Rama Mahadeo Gund

(since dead) through LRS. and Others reported in 2015(2)

Mh.L.J. 345. The learned Counsel has submitted that, as per the

provisions of Section 92 Proviso (1) of Evidence Act, oral

evidence can be adduced to contradict the documents.

8. Mr.Rahul Bhangde, learned Counsel has further

submitted that this is a Second Appeal. Learned trial Court as

well as the first Appellate Court recorded its’ findings properly.

There is no perversity or illegality in the findings recorded by

both the Courts below. Therefore, it being a Second Appeal, the

High Court cannot disturb the findings of both the Courts below.

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In support of his submission, the learned Counsel has pointed

out decision in the case of Karnataka Board of Wakf .vs.

Anjuman-E-Ismail Madris-Un-Niswan reported in (1999) 6

SCC 343.

9. I have perused the evidence of plaintiff and his

witnesses. The plaintiff comes before the Court with a specific

case that there was agreement to sell suit land on the day of

Gudi Padwa of the year 2006. On that day, Rs.20,000/- was paid

by the plaintiff to the defendants. The defendants handed over

possession of the suit field to him. Plaintiff’s witnesses PW-1

Kawdu Bhute and PW-2 Hiraman Parbat have stated as per the

evidence of plaintiff in their examination-in-chief, but there is

material contradiction in respect of payment of amount of

earnest money and handing over possession of the suit field to

the plaintiff.

10. The plaintiff further comes with a specific case that

agreement to sell took place on the day of Gudi Padwa of the

year 2006, but, in the agreement (Exh.35), there is nothing

about oral agreement to sell on the day of Gudi Padwa of the

year 2006. On the other hand, agreement (Exh.35) shows that

possession was not delivered to the plaintiff. It is specifically

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mentioned in the agreement itself that possession of field would

be given on the day of sale deed. This itself shows that

possession of suit field was not given to the plaintiff.

11. There is material contradiction in respect of oral

evidence of plaintiff and the agreement to sell (Exh.35). The

plaintiff has stated in his evidence that, at the time of handing

over possession on the day of Gudi Padwa, crops of Cotton and

Soyabean were standing in the field. Where as witness Kawdu

Bhute has stated that crops of Wheat and Gram were standing in

the field. In respect of execution of document, PW-Bhute has

stated that agreement to sell was reduced into writing by

Attorney Mr.Made; whereas other witness Hiraman has stated

that agreement to sell was written by Attorney Hingmire.

12. There is material contradiction in respect of payment

of earnest money. The plaintiff has stated in his evidence that

the defendants received Rs.90,000/- on 3.10.2006 and executed

document (Exh.35), which was registered on 4.10.2006. The

document (Exh.35) shows that Rs.90,000/- was paid to the

defendants. Material contradiction is in the evidence of plaintiff

itself. As per his evidence, Rs.20,000/- was paid to the

defendants on the day of Gudi Padwa at the time of oral

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agreement. But nothing is mentioned in the agreement to sell

(Exh.35) in respect of payment of Rs.20,000/- on the day of Gudi

Padwa. On the other hand, it is written in Exh.35 that

Rs.90,000/- was paid to the defendants. In respect of payment of

Rs.90,000/-, there is also material contradiction in the evidence

of witnesses Bhute and Hiraman. Witness Bhute has stated in

his evidence that earnest money of agreement to sell of

Rs.90,000/- was paid to the defendants two days before

registration of document. As per evidence of plaintiff, on

3.10.2006, total Rs.90,000/- was paid and document was

executed. It was registered on 4.10.2006. It shows that after

one day it was registered. Whereas witness Bhute has stated

that, two days before registration of document, Rs.90,000/- was

paid. Witness Bhute has stated in his evidence that, two days

before 3.10.2006, there was an agreement between plaintiff and

defendants to sell the suit property. Before that, there was no

any agreement between the plaintiff and defendants. He has

denied that Rs.20,000/- was paid earlier and on the day of

execution of Exh.35, Rs.70,000/- was paid. He has contradicted

his own evidence in his examination-in-chief. Hiraman, witness of

plaintiff, has stated in his examination-in-chief that, on the day

of Gudi Padwa of the year 2006, there was an agreement

between the plaintiff and defendants to sell the suit property for

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a consideration of Rs.91,000/-. On 3.10.2006, in his presence,

Rs.70,000/- was paid to the defendants at Higanghat. In his

cross-examination, he has stated that Rs.20,000/- was paid by

father of plaintiff before execution of document (Exh.35). He has

contradicted his evidence in respect of payment of Rs.70,000/-

at Higanghat.

13. The evidence of plaintiff is contradictory to the

document (Exh.35). There is material contradiction in respect of

payment of earnest money to the defendants at the time of

execution of document (Exh.35). Therefore, the defence of

respondents that they received Rs.40,000/- as hand loan and the

document was executed towards security of loan is a probable

defence. Learned trial Court as well as the first Appellate Court

have rightly recorded their findings holding that the plaintiff

failed to prove that the defendants agreed to sell the suit land of

1 Hec 0.01 R. Though execution of agreement is admitted by

defendants, but contents are not proved by plaintiff.

14. There is also material contradiction in respect of

possession as pleaded by the plaintiff. The document (Exh.35)

itself shows that possession would be given at the time of sale

deed. Whereas it is case of plaintiff that, at the time of oral

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agreement, on the day of Gudi Padwa, Rs.20,000/- was paid and

possession was handed over to him. Plaintiff has stated in his

evidence that,s at that time, crops of Cotton and Soyabean were

standing in the field; whereas witness Bhute has stated in his

cross-examination that Crops of Wheat and Gram were standing

in the field. Cross-examination of Hiraman shows that, at the

time of Gudi Padwa, crop of Soyabean was in the field.

15. There was measurement by the plaintiff in the year

2007 i.e. on 15.4.2007. At that time, the plaintiff was present.

As per evidence of plaintiff, witnesses Bhute and Hiraman were

present. Witnesses Bhute and Hiraman initially denied their

presence, but later they admitted that they were present at the

time of measurement. The suit land is not shown separately in

the Measurement map (Exh.53). The field of plaintiff was fenced

by barbed wire from all the sides. There was no separate portion

carved out to show possession of plaintiff. Plaintiff has filed one

document which shows that there was disputed entry in respect

of possession of plaintiff. It was not confirmed by the Revenue

Authority. There is no any document placed on record by the

plaintiff to show that he was in possession of the suit field.

Therefore, contention of plaintiff that the defendants agreed to

sell the suit field and he was put in possession of the suit field is

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falsified. Looking to the evidence on record, the trial Court as

well as the first Appellate Court have rightly come to the

conclusion and dismissed the suit.

16. In respect of registered document (Exh.35), learned

Counsel for the appellant has submitted that it is a registered

document and therefore, contents therein cannot be

contradicted. Sections 91 and 92 of the Indian Evidence Act are

material sections in respect of oral evidence of the documents

reduced into writing. If the document is proved as per Section

91, then oral evidence as per Section 92 is not permitted to

contradict the document but proviso (1) of Section 92 permits to

contradict the document. It reads as under :

“ 92.Exclusion of evidence of oral agreement.-When

the terms of any such contract, grant or other
disposition of property, or any matter required by law
to be reduced to the form of a document, have been
proved according to the last section, no evidence of
any oral agreement or statement shall be admitted,
as between the parties to any such instrument or
their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting from,
its terms :

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Proviso (1). - Any fact may be proved which would

invalidate any document, or which would entitle any
person to any decree or order relating thereto; such
as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party,
[want or failure] of consideration, or mistake in fact
or law.

17. As per Section 92 Proviso (1), evidence can be

adduced to contradict the document. Learned Counsel for the

respondents has pointed out the decision in the case of Vithal

Saidu Lokhande (cited supra). This Court has held that oral

evidence as per the provisions of Section 92 Proviso (1) is

applicable and the defendants can adduce the oral evidence to

contradict the document. This Court in the case of Vithal Saidu

Lokhande (cited supra) has held that “Plea to invalidate any

document proved in accordance with section 91 is available

where a case is made out of fraud, intimidation, illegality, want

of due execution, want of capacity in any contracting party, want

or failure of consideration, or mistake in fact or law. It is further

held that “proviso (1) of Section 92 permits leading of parol

evidence of any fact which would invalidate any document, at

the instance of any party to such document of their

representatives in interest. Proviso (4) does not deal with the

question of invalidating any document but it relates to the

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existence of any distinct subsequent oral agreement to rescind

or modify any such contract, grant or disposition of property. It

makes the parol evidence admissible to show that the prior

written contract has been waived or replaced by subsequent oral

agreement with a rider that, if a matter has been reduced into

writing because the law requires it to be in writing for its validity,

no oral evidence can be given of any subsequent agreement,

rescinding or modifying it. It can only be waived, rescinded,

modified or altered by another written agreement of equally

solemn character. The rule applies to all registered instruments,

whether or not, registration is compulsory under the law. “

18. As per the Judgment of this Court in the case of Vithal

Saidu Lokhande (cited supra), parol evidence can be adduced as

per Section 92 Proviso (1) of Indian Evidence Act in respect of

any fact which would invalidate any document, at the instance of

any party to such document or their representatives in interest.

In the present matter, the appellant failed to prove the material

pleadings and contents of document (Exh.35). The defendants

adduced their parol evidence to show that Exh.35 was executed

only to secure the loan amount. It was not agreement to sell

sale, but it was nominally executed for the security of loan

amount of Rs.40,000/-. The defendants are permitted as per

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Proviso (1) of Section 92 to adduce their oral evidence. Hence,

the argument advanced that Exh.35 being a registered

document, oral evidence is not permissible, is not acceptable.

19. Learned Counsel for the respondents has submitted

that both the Courts below recorded concurrent findings.

Therefore, this Court cannot disturb the concurrent findings of

the Courts below. He has pointed out decision of the Apex Court

in the case of Karnataka Board of Wakf (cited supra), wherein

the Apex Court has held in paras 12, 13 and 14 as under :

“12.This Court had repeatedly held that the power of

the High Court to interfere in second appeal under
Section 100 of the C.P.C. is limited solely to decide a
substantial question of law, if at all the same arises
in the case. It has deprecated the practice of the
High Court routinely interfering in pure findings of
fact reached by the courts below without coming to
the conclusion that the said finding of fact is either
perverse or not based on material-on-record.”

“13. In Ramanuja Naidu v. V. Kanniah Naidu, (1996)

3 SCC 392, this Court held :

"It is now well settled that concurrent findings of fact

of trial court and first appellate court cannot be
interfered with by the High Court in exercise of its

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jurisdiction under Section 100 of Civil Procedure

Code. The Single Judge of the High Court totally
misconceived his jurisdiction in deciding the second
appeal under Section 100 of the Code in the way he
did."
"14.In Navaneethammal v. Arjuna Chetty (1996) 6
SCC 166, this Court held :

"Interference with the concurrent findings of the

courts below by the High Court under Section 100
CPC must be avoided unless warranted by
compelling reasons. In any case, the High Court is
not expected to reappreciate the evidence just to
replace the findings of the lower courts. …... Even
assuming that another view is possible on a
reappreciation of the same evidence, that should
not have been done by the High Court as it cannot
be said that the view taken by the first appellate
court was based on no material."

20. The plaintiff himself has failed to prove his case.

Pleadings and evidence are contradictory. There is nothing in

respect of oral agreement as stated by plaintiff in the agreement

to sell Exh.35. As per the pleadings, possession was handed

over to him on the day of Gudi Padwa of the year 2006. But the

document (Exh.35) itself shows that possession would be given

to the plaintiff at the time of sale deed. There is material

contradiction in respect of payment of earnest money as stated

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by the plaintiff. Evidence of plaintiff and his witnesses is not

reliable. Therefore, the trial Court has rightly dismissed the suit

and the appeal is also dismissed by the first Appellate Court.

Both the Courts below have rightly held that agreement

(Exh.35), dt.3.10.2006 was a nominal transaction and it was not

to be acted upon. Though execution of Exh.35 is admitted by

defendants, but contents are not proved by plaintiff. The

substantial questions of law are answered accordingly. There is

no substance in the appeal. The appeal is, therefore, dismissed.

No order as to costs.

JUDGE

[jaiswal]

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