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404 Damodhar Narayan Sawale V Shri Tejrao Bajirao Mhaske 4 May 2023 472234
404 Damodhar Narayan Sawale V Shri Tejrao Bajirao Mhaske 4 May 2023 472234
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2. Shorn of details, the plaint averments for seeking possession of the suit land, which
is a field comprised in Khasra No.20/2, having an extent of 3 Acres and 20 guntas in village
Gangalgaon, Taluk Chikhli, District Buldana, are as under: -
Original Defendant Nos.1 and 2 viz., Ramakrishna Ganpat Mhaske and Tejra
Bajirao Mhaske, have sold the above-described suit field in favour of the plaintiff as per
registered sale deed dated 21.04.1979 (Exhibit-128). Soon on its execution the plaintiff
was put in possession. On 25.04.1979, the second defendant started disturbing his
possession. Suit was then filed on 21.05.1979. In view of the registered sale deed (Exhibit
128) he obtained absolute title over the suit land and in such circumstances, the second
defendant who sold the same for discharging debts and family needs got no right or reason
to disturb his peaceful possession. The total sale consideration of Rs.10,000/- was given
to defendants for the aforesaid entire extent of 3 acres and 20 guntas as the first defendant
obtained title over 2 acres and 20 guntas out of the aforesaid total extent from the second
defendant as per registered sale deed dated 04.07.1978 and the second defendant
remained as the owner in possession of the balance one acre. It is his case that the second
defendant had utilised the sale consideration passed on to him for different purposes,
including to pay his debts. It is also relevant to note that the original petitioner in the SLP,
from which this appeal arises, viz., the plaintiff, died during pendency of this proceeding
and subsequently, his legal representatives got substituted as petitioners. Ergo, they are
jointly described hereafter as ‘appellants’, wherever, such reference is required. On the
death of the first defendant/the original second respondent during the pendency of the
Second Appeal, his legal representatives were impleaded as additional respondents and
they are respondent Nos. 2 to 6 herein. For the non-compliance with the order of the
Hon’ble Chamber Judge, the SLP stood dismissed qua respondent No. 6, as per order
dated 22.11.2017. At the stage of second appeal the legal heirs of the deceased son of
the second defendant viz., the first respondent herein, were impleaded as respondents
therein and they are respondents 7 to 9 herein.
3. The first defendant filed a written statement endorsing the claim and contentions of
the plaintiff and he would also state therein that after executing the sale deed, himself and
the second defendant (the first respondent herein) parted with the possession of the suit
land and then, the second defendant (the first respondent herein) turned dishonest and
started disturbing the possession of the plaintiff. However, the second defendant (the first
respondent herein) resisted the suit by filing written statement and denying the claims and
contentions of the plaintiff. His pleadings revealed from the written statement, in nutshell,
read thus:-
The sale deed dated 21.04.1979 (Exhibit 128) is a sham document which was never
intended to be acted upon and in fact, it was never been acted upon. His case, while
admitting the execution of sale deed (Exhibit 128), is that though it was executed as a sale
deed, what had actually transpired was nothing but an execution of sale deed solely as a
collateral security to a money lending transaction viz., for a loan of Rs.1000/- with a
promise to re-pay an amount of Rs.1500/- within 12 months. It is to be noted that in the
written statement, the second defendant (the first respondent herein) further contended
that the registered sale deed executed in favour of the original first defendant was also of
the very same nature. He would further plead that in the said transactions also, in fact
there was no passing of sale consideration from the purchasers as in the case of Exhibit
128 sale deed so as to constitute a valid sale and the other such sale deeds were also
executed without any intention to effect sale of the properties, at the time of borrowing
money. To contend that the plaintiff is disentitled to any relief as sought for, he would also
raise two other contentions; firstly, based on the provisions of
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Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947
(hereinafter referred to as ‘Fragmentation Act’) and secondly, in the light of the provisions
under Section 10 of the Bombay Money Lenders Act, 1946, which get attracted owing to
the facts that he is an original farmer owning only less than 2 hectares of land and that his
annual income is less than Rs.1200/-.
4. Based on the rival pleadings, the trial Court formulated the following issues and
answered them in the following manner, as can be seen from paragraph 6 of its judgment:-
ISSUES FINDINGS.
1. Does the Plaintiff proves that he purchased the suit field from In the negative.
Defendants as alleged?
2. Does he further proves that the suit sale deed is for legal In the negative.
necessity?
3. If the Plaintiff entitled to the possession of the suit field along with In the negative.
enquiry into mesne.
4. Does the Defendant No.2 proves that the suit sale deed is bogus, In the affirmative.
sham and nominal as alleged?
5. Does the further proves that the Plaintiff deals in money landing In the affirmative.
without licence?
6. Does he further proves that the sale deed in suit was made as
per the agreement given in para 9 of the Written Statement? In the affirmative.
7. Does he further prove that the suit field is owned by other In the affirmative.
persons?
8. Does he further proves that the permission of the District Judge, is In the affirmative.
required for the suit sale deed as alleged?
9. Does he further proves that he is a marginal owner as alleged in In the affirmative.
para 14 of the Written Statement.
10. Reliefs and costs? As per final order.
5. On the basis of the findings returned on the issues thus formulated, the trial Court
came to the conclusions that the plaintiff had not purchased the suit field as claimed, that
he had failed to prove that the execution of the sale deed was for a legal necessity of the
second defendant. Further, it came to the conclusion that the sale deed was a sham
document and it was executed only as a security for a money lending transaction and
consequently, the original suit was dismissed with costs. 6. In Regular Civil Appeal No.98
of 1987, filed by the unsuccessful plaintiff, the First Appellate Court framed the following
points for consideration based on the rival submissions and returned the following
findings:-
POINTS FINDINGS
1. Whether it is proved by the plaintiff that defendant No.2 had executed Yes
sale deed in his favour under Ex. 128 and he has become owner of the
property?
2. Whether it is proved by the defendant No.2 that the sale deed Ex. No
128 was a nominal document and was executed by way of collateral
security for money lending transaction?
3. Whether Plaintiff is entitled to the possession of suit property? Yes
4. What order? As per final order.
7. Thus, it is evident that upon finding that the trial Court had virtually ignored the legal
impact and effect of registered sale deed (Exhibit 128), in respect of suit land executed in
favour of the appellant therein viz., the plaintiff, the First Appellate Court considered the
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issues formulated by focusing that aspect. True that for upholding the sale deed viz.
(Exhibit 128), the First Appellate Court had given due weight to the notice dated
27.04.1979 (Exhibit 113), virtually lawyer notice issued by the second defendant
immediately after the transaction, in the name of the plaintiff and held that it would lend
support to the factum of sale effected through sale deed (Exhibit 128). The First Appellate
Court on such consideration and on appreciation of the materials on record held that the
second defendant had failed to prove that the sale transaction was an outcome of money
lending transaction and that the sale deed was nominal in nature. Consequently, the
appeal was allowed, the judgment and decree of the Trial Court was set aside and the suit
for possession on the strength of title was decreed in favour of the plaintiff (the appellant
therein).
8. It is feeling aggrieved and dissatisfied with the said judgment and decree that the
Second Appeal No.435 of 1995 was filed by the original second defendant viz., the first
respondent herein, which ultimately culminated in the impugned judgment.
9. A perusal of the impugned judgment would reveal that the High Court re-framed the
substantial questions of law on 15.10.2015 as hereinunder: -
[1] Whether the plaintiff has established his entitlement for a decree of possession of the suit
property on the basis of the sale deed dated 21.04.1979 at Exh.128 executed by the defendant
Nos.1 and 2?
[2] Whether the defendant No.2 has established that the sale deed at Exh.128 was nominal
and by way of collateral security and the said transaction was hit by the provisions of Section 8
of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act?
[3] While reversing the findings recorded by the trial Court, whether the lower appellate Court
has ignored the findings recorded by the trial Court on the material facts in the light of undisputed
factual position?"
10. Even though the powers under Article 136 of the Constitution of India must be
exercised sparingly, yet there is absolutely nothing in the said Article which prohibits the
Supreme Court from reversing even concurrent findings of the fact by courts below, if it is
of the opinion on the basis of the evidence on record, that affirming the findings of the
courts below would result in a grave miscarriage of justice. It was so held by this Court in
Charanjit & Ors. v. State of Punjab & Anr.1 as also in Adambai Sulemanbhai Ajmeri
& Ors. v. State of Gujarat2. Therefore, if a relevant material legally brought on record and
the question of law arising out of its existence were not considered by the High Court,
despite its due consideration by the First Appellate Court, while reversing the judgment
founded on such consideration this Court has necessarily to consider the same in
invocation of the power under Article 136. While considering this appeal, in that view of
the matter, it is only proper and profitable to refer to the following crucial and relevant facts
obtained in the case:
(i) Exhibit 128 is a registered sale deed.
(ii) Its execution is admitted by both the original defendants. (True that the second
defendant (first respondent herein) contends that it was executed as a collateral security
at the time of a money lending transaction).
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