Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.930 of 2023
(@ Special Leave Petition (C) No.10747 of 2016)
Damodhar Narayan Sawale (D) through LRs.
…Appellant (s)
Versus
Shri Tejrao Bajirao Mhaske & Ors.
…Respondent (s)
J U D G M E N T
C.T. RAVIKUMAR, J.
1. This appeal filed under Article 136 of the
Constitution of India is directed against the judgment
and final order dated 30.10.2015 in Second Appeal
No.435 of 1995 passed by the High Court of Judicature at
Bombay, Nagpur Bench, whereby and whereunder the
High Court reversed the judgment and decree of the
Court of Additional District Judge, Buldana, in Regular
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2023.05.04
16:38:35 IST
Reason:
Civil Appeal No.98 of 1987, reversing the judgment and
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decree of dismissal passed by the Court of Joint Civil
Judge, Junior Division, Chikhli in Regular Civil Suit
No.257 of 1985 (originally numbered as Regular Civil
Suit No.104 of 1979 on the file of the Court of Civil Judge,
Senior Division, Buldana, before its transfer). In short, as
per the impugned judgment, the High Court restored the
decree of dismissal of the suit by the trial Court. The
stated Regular Civil Suit is one for possession of suit land
on the strength of title.
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
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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
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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
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Civil Appeal No.930 of 2023
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
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/-.
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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 In the negative.
that he purchased the suit
field from Defendants as
alleged?
2. Does he further proves In the negative.
that the suit sale deed is for
legal necessity?
3. If the Plaintiff entitled to In the negative.
the possession of the suit
field along with enquiry into
mesne.
4. Does the Defendant No.2 In the affirmative.
proves that the suit sale
deed is bogus, sham and
nominal as alleged?
5. Does the further proves In the affirmative.
that the Plaintiff deals in
money landing without
licence?
6. Does he further proves In the affirmative.
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Civil Appeal No.930 of 2023
that the sale deed in suit
was made as per the
agreement given in para 9 of
the Written Statement?
7. Does he further prove that In the affirmative.
the suit field is owned by
other persons?
8. Does he further proves In the affirmative.
that the permission of the
District Judge, is required for
the suit sale deed as
alleged?
9. Does he further proves In the affirmative.
that he is a marginal owner
as alleged in 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
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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 Yes
that defendant No.2 had executed
sale deed in his favour under Ex.
128 and he has become owner of
the property?
2. Whether it is proved by the No
defendant No.2 that the sale deed
Ex. 128 was a nominal document
and was executed by way of
collateral security for money
lending transaction?
3. Whether Plaintiff is entitled to the Yes
possession of suit property?
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
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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 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.
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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
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affirming the findings of the courts below would result in
a grave miscarriage of justice. It was so held by this
1
Court in Charanjit & Ors. v. State of Punjab & Anr. as
also in Adambai Sulemanbhai Ajmeri & Ors. v. State of
2
Gujarat . 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).
(iii) The second defendant (first respondent
herein) has also admitted execution of registered
1
(2013) 11 SCC 163
2
(2014) 7 SCC 716
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sale deed in favour of defendant No. 1 (earlier in
point of time than Exhibit 128) in respect of 2 acres
and 20 guntas. (Here also, the second defendant
claimed that the sale deed was executed as a
collateral security for the money borrowed and
therefore repayable to him along with the quantified
fixed interest thereon).
11. We have already referred to the issues/points
formulated by the courts below and the findings
returned by the respective courts which formed the
basis for their respective judgments. Bearing in mind the
decisions referred supra and also the relevant facts
available, as noted above and also the relevant
provisions under the relevant enactments, to be referred
to hereafter, we may proceed to consider this appeal.
12. As noted earlier, after reversing the judgment and
decree of the First Appellate Court, the High Court
restored the decree of the trial Court. In this context, it is
apt to note the re-framed substantial question of law No.
3 by the High Court, extracted above, that carries the
query whether, while reversing the findings recorded
by the trial Court, the lower appellate Court had ignored
the findings recorded by it on the material facts in the
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light of undisputed factual position. We may hasten to
add here that a bare perusal of the impugned judgment
would reveal that after framing such a question of law the
High Court did the very seemingly attributed act
inasmuch as it did not consider the legal impact and
effect of Ext. 128, registered sale deed, which was taken
into consideration by the First Appellate Court, while
reversing the judgment and decree of the First Appellate
Court.
13. A scanning of the trial Court judgment would
reveal indubitably that despite the admission of the
execution and registration of Exhibit 128 sale deed dated
21.04.1979 by the second defendant in favour of the
plaintiff and also that of the sale deed dated 04.07.1978
by him to the first defendant, it had failed to consider the
legal effect and impact of execution and registration of
such a sale deed in view of the provisions under the
Transfer of Property Act, 1882, as also the Registration
Act, 1908, and sans such consideration accepted the
second defendant’s contention that it is a sham
document. Paragraph 7 of the judgment of the trial Court
would reveal that despite the admission of execution and
registration of Ext. 128 sale deed dated 21.04.1979 by the
second defendant as also by the first defendant, the trial
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Court held that the burden of proving the factum of
execution of sale deed and passing of the consideration
amount was on the plaintiff. The trial Court had also
failed to consider the relevance and application of
Section 92 of the Indian Evidence Act, 1872 while
appreciating the oral evidence against Ext. 128.
Evidently, the trial Court accepted the case of the second
defendant that the said sale deed was one executed as a
collateral security to a money lending transaction and
that it was never intended to be acted upon. The trial
Court has also held the sale deed virtually invalid by
accepting the contention that the transaction violated the
provision under Section 8 of the Fragmentation Act and
in that regard the sale deed dated 04.07.1978 executed
between defendant Nos. 1 and 2 was held as one creating
a ‘fragment’ and therefore, violating the prohibition. This
was done without looking into the question as to its
jurisdiction to entertain and adjudicate upon such a plea
in view of the statutory bar of jurisdiction under Section
36A of the Fragmentation Act. In that regard it is
noteworthy that nothing was specifically mentioned in
paragraph 14 or anywhere else in the written statement
filed by the second defendant regarding the violation of
the provisions under the Fragmentation Act and, in fact,
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only vague reference was made on that aspect in
paragraph 16 reproduced as under: -
“16. …In event, according to provision of
Consolidation of Act and Prevention of
Fragmentation Act, the plaintiff not entitled to any
relief.”
14. In view of the aforementioned facts as also taking
note of the contentions raised on behalf of the contesting
respondents, in support of the impugned judgment, that
the First Appellate Court failed to consider at all the
voidness of the sale transaction of 2 acres and 20 guntas
between original defendants 1 and 2, its impact on the
sale of consequentially created ‘fragmentation’ of one
acre by the second defendant and the whole sale
transaction effected under Exhibit 128 sale deed by
operation of the Fragmentation Act and further that the
said aspect was rightly considered by the High Court, we
think it only proper to deal with that matter
appropriately.
15. At the outset, we may say that there is dichotomy
between the contention of the first respondent/ the
second defendant founded on the Fragmentation Act as
mentioned above and also his contention of absolute
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absence of a transaction partaking the real nature of sale.
This is because Section 9 (1) of the Fragmentation Act
makes void only the transfer or partition of any land
contrary to the provisions of the said Act. The word
‘transfer’ is not defined under the Fragmentation Act
though the expression ‘land’ has been defined
thereunder. As per Section 2 (5) of the Fragmentation
Act, the term ‘land’ means, ‘agricultural land whether
alienated or unalienated’. In the said circumstances, to
know the meaning of the words ‘transfer of any land’
used in Section 9 (1) of the Fragmentation Act, one may
have to see the definition of ‘transfer of property’ under
Section 5 of the ‘Transfer of Property Act, 1882,
(hereinafter referred to as, the TP Act’), which reads
thus:-
5. “Transfer of property” defined . —In the
following sections “transfer of property” means an
act by which a living person conveys property, in
present or in future, to one or more other living
persons, or to himself, [or it himself] and one or more
other living persons; and “to transfer property” is to
perform such act.
[in this section “living person” includes a company or
association or body of individuals, whether
incorporated or not, but nothing herein contained
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shall affect any law for the time being in force relating
to transfer of property to or by companies,
associations or bodies of individuals.]
16. In the contextual situation it is also relevant to refer
to the definition of ‘sale’ given under Section 54 of the TP
Act, which reads thus:-
54. “Sale” defined.—“ Sale” is a transfer of
ownership in exchange for a price paid or promised
or part-paid and part-promised.
17. The term ‘transfer’ is a word in a broader sense and
the word ‘sale’ is a specific word. Sale, going by the
definition under T.P. Act, presupposes transfer from one
person to another of the right in property and in other
words, in sale, the ownership of the property is
transferred. A conjoint reading of Section 54 of the TP
Act and Section 17 of the Indian Registration Act, 1908,
mandates that transfer of ownership of any land worth
more than Rs.100/- shall be effected by a registered
deed. Therefore, transfer of a land worth more than
Rs.100/- by a registered deed implies transmutation of
all rights as the vendor possessed in the property
concerned. We are not oblivious of the fact the mere
registration of a document is no proof of its execution.
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We will deal with this aspect a little later. It will not be
inappropriate to look into the object of the
Fragmentation Act, in the context of the contentions. It
runs as under:-
“ Whereas it is expedient to prevent the
fragmentation of agricultural holdings and to provide
for the consolidation of agricultural holdings for the
purpose of the better cultivation thereof;”
18. Thus, obviously, it is not the object or purpose of
the Fragmentation Act to totally prohibit or prevent
transfer of land within any notified ‘local area’, but it is
only aimed at preventing the fragmentation of
agricultural holdings and to provide for the
consolidation of agricultural holdings for the purpose of
the better cultivation thereof.
19. In the context of the above mentioned rival
pleadings, contentions and the position revealed from
the facts and the provisions, the question to be
considered is whether the second defendant herein had
made out any case for attracting the provisions of the
Fragmentation Act /or in other words, whether the trial
Court was right in applying the provisions under the said
Act and the High Court was legally correct in restoring
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the decree of the trial Court after reversing the judgment
and decree of the First Appellate Court, in view of the
mutually annihilative pleas taken up by the second
defendant viz., the first respondent herein and accepted
by the trial Court and the High Court. Contextually, it is
apposite to state that though in a suit a defendant is
entitled to raise alternative inconsistent plea he could not
be permitted to raise pleas which are mutually
destructive of each other and raising such pleas would
only work out to his detriment.
20. Evidently, while entertaining the contentions
founded on the Fragmentation Act raised by the second
defendant, the trial Court as also the High Court have not
bestowed attention to the statutory bar of jurisdiction
under Section 36A of the Fragmentation Act which reads
thus:-
[36A. (1) No Civil Court or Mamlatdar’s Court shall
have jurisdiction to settle, decide or deal with any
question which is by or under this Act required to be
settled, decided or dealt with by the State
Government or any officer or authority.
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21. In the above context, it is also relevant to refer to
Section 36 B (1) of the Fragmentation Act. It reads as
under:
[36B. (1) If any suit instituted in any Civil Court or
Mamlatdar’s Court involves any issues which are
required to be settled, decided or dealt with by any
authority competent to settle, decide or deal with
such issues under this Act (hereinafter referred to as
the ‘competent authority’) the Civil Court or
Mamlatdar’s Court shall stay the suit and refer such
issues to such competent authority for determination.
22. It is also worthwhile in the contextual situation to
refer to Section 9 of the Code of Civil Procedure, 1908
(hereinafter referred to as, ‘the CPC’), which confers
jurisdiction upon the Civil Courts to determine all
disputes of civil nature, unless the same is barred under
a statute, either expressly or by necessary implication.
We shall not be oblivious of the fact that the second
defendant had not so far approached the competent
authority under the Fragmentation Act to nullify the
action undertaken under the conveyance, resorting to
the remedy contemplated under the Fragmentation Act,
going by the materials on record. At any rate, there is no
such case for him. We made this statement because the
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first proviso to Section 9(3) of the Fragmentation Act
would reveal that the automatic voidness would not be
attracted to a transfer of land contrary to the provisions
th
of the Fragmentation Act, if it was made on or after 15
day of November, 1965 and before the date of
commencement of Maharashtra Prevention of
Fragmentation and Consolidation of Holdings
(Amendment) Act, 2017 and that apart, Section 31,
referred therein, which puts bar for sale, makes it clear
under clause (iii) Sub-section (3) thereof, that the said
bar would not apply to any land which is to be
transferred to an agriculturist, in its entirety provided
such transfer is not creating a fragment. We may hasten
to add here that we shall not be understood to have held
that the subject suit involves any issue(s) which is
required to be settled, decided or dealt with any
authority competent to settle, decide or deal with such
issue under the Fragmentation Act. As a matter of fact,
the very applicability of the Fragmentation Act itself on
sale transactions would depend upon the question
whether the area in question falls under a Municipal
Council or not and if it does not, then on the further
question as to whether it falls within a ‘local area’ notified
under the Fragmentation Act. Above all, the case
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attempted to be projected and proved by the second
respondent is that in regard to sale deed dated
04.07.1978 and the sale deed dated 21.04.1979 (Ext.128)
they were never intended to be acted upon and in fact,
they were never been acted upon. If that is accepted,
then, there is absolutely no question of applicability of
the provisions of ‘the Fragmentation Act’ as they would
apply only in the eventuality of an actual transfer of land
or partition of land subject to the satisfaction of other
conditions.
23. A conjoint reading of Section 36A and 36B of the
Fragmentation Act would reveal that when a suit is
instituted in a Civil Court, the Court concerned has to
consider if the suit involves any issue(s) which is/are
required to be settled, decided or dealt with by any
competent authority to settle, decide or dealt with, such
issues under the said Act. If it does, then after staying the
suit the said issue(s) is to be referred to such competent
authority for determination. Apparently, no such
consideration had been made by the trial Court as also
by the High Court.
24. Taking note of the fact that the regular civil suit is
of the year 1979, at this distance of time and also for the
reasons stated hereinabove and to be unfolded
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hereinafter, we are not inclined to remand the matter to
decide the question whether the second defendant/ the
first respondent herein had succeeded in establishing
that the subject suit involves any issue required to be
settled, decided or dealt with by any competent
authority under the said Act and therefore the subject
suit was to be stayed as mandated under Section 36B of
the Fragmentation Act and such issue was to be referred
to such competent authority for determination. The well-
nigh settled position is that the jurisdiction of the Court
has to be determined based on the averments in the
plaint and it cannot be determined only on the basis of
the uncorroborated averments made in the written
statement. This position is unquestionably applicable in
the case on hand in view of the specific wordings under
Section 36B of the Fragmentation Act viz., if any suit
instituted in any Civil Court or Mamlatdar’s Court
involves any issues which are required to be settled,
decided or dealt with by any authority competent to
settle, decide or dealt with under this Act. The words ‘if
any suit, instituted in Civil Court’ and ‘involves any
issues’ employed in Section 36B of the Fragmentation Act
would undoubtedly point to the fact that involvement or
otherwise of such issues mentioned under the section in
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‘the suit instituted in a Civil Court’ is the factor deciding
the applicability of the procedures prescribed under
Section 36B, of the Fragmentation Act. Therefore, the
question whether such issue(s) falling under Section 36B
of the Fragmentation Act is involved or not was to be
decided with reference to the averments in the plaint.
On their own the plaint averments did not disclose
involvement of any such issue(s) requiring a reference to
a competent authority under the Fragmentation Act.
Since the issue is whether the suit involves such issue(s),
we will refer to the written statement as well. We have
already referred to the sole, vague averment in the
written statement filed by the second defendant in the
suit referring to the Fragmentation Act, which in no way
could construe as a counter-claim capable of treating as
a plaint and governed by the rules applicable to plaints
in terms of Order VIII Rule 6 A, CPC and enabling the
court to pronounce a final judgment in the same suit, both
on the original claim and on the counter-claim. That
apart, we have also already noted the case projected and
proved by the second defendant that Ext.128 sale deed
and sale deed dated 04.07.1978 were never intended to
be acted upon. Thus, going by his mutually destructive
pleas as well, no case for attracting the provisions of ‘the
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Civil Appeal No.930 of 2023
Fragmentation Act’ was made out by the second
defendant.
25. In the above context the decision of this court in Jag
Mohan Chawla and Anr. v. Dera Radha Swami Satsang
3
& Ors. is noteworthy. It was held therein that in sub-rule
(1) of Rule 6A, CPC the language is so couched with
words of wide width as to enable the parties to bring his
own independent cause of action in respect of any claim
that would be subject matter of an independent suit. It is
no longer confined to money claim or to cause of action
of the same nature as original cause of action of the
plaintiff and it need not relate to or be connected with the
original cause of action or matter pleaded by the
plaintiff. It was further held that the words “any right or
claim in respect of a cause of action accruing with the
defendant” would show that the cause of action from
which the counter claim arises need not necessarily arise
from or have any nexus with the cause of action of the
plaintiff.
26.
The decision of this court in Rohit Singh and Ors.
4
v. State of Bihar also assumes relevance in the above
context. This court held that a defendant could not be
3
(1996) 4 SCC 699
4
(2006) 12 SCC 734
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permitted to raise counter-claim against co-defendant
because by virtue of Order VIII Rule 6A, CPC, it could be
raised by defendant against the claim of the plaintiff.
27. Now, it is required to be noted that despite the lack
of foundational facts attracting the applicability of the
‘Fragmentation Act’ (in fact, there is no serious
consideration of such aspects by the trial Court and the
High Court) and the position revealed from the aforesaid
decisions and the provisions and on the question of
raising of any right or claim by way of counter-claims, we
are at a loss to understand as to how the trial Court and
the High Court came to frame issues and consider such
issue(s), that too, ignoring the statutory bar of
jurisdiction to go into and decide, issue No.9 framed by
the trial Court, as extracted in paragraph 4 hereinabove
and issue No. 2 re-framed by the High Court, as
extracted in paragraph 9 hereinabove.
28. As relates issue No. 9, framed by the trial Court, at
the risk of repetition, we will state that in regard to ‘the
Fragmentation Act’ only a very vague plea was taken in
the written statement by the second defendant viz., “In
event, according to the provisions of Consolidation of
Act and Prevention of Fragmentation Act, the plaintiff is
not entitled to any relief.” Thus, when the indisputable
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position is that no counter-claim, within the meaning of
Order VIII Rule 6A, CPC was made by the second
defendant and no averment whatsoever was made
specifically in the written statement filed by him how
such an issue as to whether ‘he had proved to be a
marginal owner’ in the light of the ‘Fragmentation Act’
arise for consideration. This is because the well-nigh
settled position of law is that one could be permitted to
let in evidence only in tune with his pleadings. We shall
not also be oblivious of the basic rule of law of pleadings,
founded on the principle of secundum allegata et
probate , that a party is not allowed to succeed where he
has not set up the case which he wants to substantiate.
Whether the area in question is a ‘local area’ notified
under the ‘Fragmentation Act’ so as to have application
of the provisions of the said Act, even if it is so, whether
the sale transaction of one acre by the second defendant
is legally permissible or could be regularized etc., were
not raised or considered, as is evident from the judgment
of the trial Court. This issue was considered by the trial
Court in paragraph 26 thereof thus: -
“26 . So far as issue no. 2 (sic.no.9) is
concerned, admittedly, the Defendant No. 2 is
marginal owner of the suit property. So,
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under the section 8A of the fragmentation Act,
the sale deed on Exh-128 in regard to the suit
property executed by the Defendant No. 2 in
respect of 1 acre of land as per Plaintiff’s case
is barred by this section. So, section of
fragmentation A it also is applicable to the
legality of the sale deed Exh. 128. Therefore,
issue No. 9 is required to be decided in favour
of the Defendant No. 2 and I therefore, answer
issue No. 9 in the affirmative.”
29. Now, we will refer to issue No. 2 re-framed by the
High Court in regard to the application of the
‘Fragmentation Act’. Before dealing with the matter any
further, it is only appropriate to refer to the following
recital from paragraph 24 of the impugned judgment of
the High Court:-
“ 24. The defendant No. 2 does not dispute that
he had sold one acre of land to the plaintiff by the
sale deed at Ext. 128 for the consideration of Rs.
3,000/- and he has shown his readiness and
willingness to deliver the possession of it to the
plaintiff.”
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Obviously, the First Appellate Court also arrived at
the same finding in respect of the said extent of land and
this fact has been duly taken care of by the High Court in
paragraph 15 of its judgment. Even after, finding as such
the High Court interfered with that part of Ext. 128 sale
deed and held it as void under sub-section (1) of Section
9 of the ‘Fragmentation Act’ as if a claim by way of
counter-claim was made by the second defendant. The
High Court, in paragraph 24 of the impugned judgment
held thus:-
“24. …However, the sale or transfer of one acre
of land out of Survey No. 20/2 by the registered
sale-deed at Exhibit 128 is the sale of fragment,
which is hit by Section 8 of the said Act, and such
sale becomes, therefore, void under sub-
section (1) of the Section 9 therein. The second
portion of the substantial question of law at
Serial No. [2] is answered accordingly. The
plaintiff cannot, therefore, seek possession on
the basis of such sale-deed.
30. Thus, a careful scanning of the impugned judgment
would reveal that virtually, the High Court considered
the validity of the sale deed dated 04.07.1978 executed
by the second defendant in favour of the first defendant
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under ‘the Fragmentation Act’, without directly framing
an issue precisely on the same and then, decided the
validity of the sale deed dated 21.04.1979 executed by
the second defendant in favour of the plaintiff. We have
already taken note of the decision of this Court in Rohit
Singh’s case (supra), wherein it is observed that a
defendant could not be permitted to raise counter-claim
against co-defendant because by virtue of Order VIII
Rule 6A, CPC it could be raised by a defendant against
the claim of the plaintiff. Be that as it may, in the instant
case, no such counter-claim, which can be treated as a
plaint in terms of the said provision and thereby,
enabling the court to pronounce a final judgment in the
same suit, both on the original claim and on the counter-
claim, was filed by the second defendant. That apart,
indisputably, the second defendant did not dispute the
execution of the registered sale deed dated 04.07.1978
by him in favour of the first defendant and in his written
statement the second defendant had only stated that
according to the provisions of the Fragmentation Act the
plaintiff was not entitled to any relief. When that be so,
legally how can the High Court hold the sale deed dated
04.07.1978 executed by the second defendant in favour
of the first defendant, void under the provisions of the
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Fragmentation Act without precisely framing an issue
and then, based on it, going on to consider the validity of
Ext. 128 sale deed dated 21.04.1979 executed by the
second defendant in favour of the plaintiff, even-after
noting the finding of the First Appellate Court that as
relates the sale of one acre of land under Ext.128 sale
deed the second defendant did not have any grievance
and then, observing, in tune with the same, that the
second defendant did not dispute that he sold one acre
of land to the plaintiff as per Ext.128 sale deed for the
consideration of Rs. 3000/- and had shown readiness and
willingness to deliver the possession of it to the plaintiff.
To make matters worse, the High Court has failed to
consider the crucial issue whether the plaintiff is entitled
to possession of the suit land on the strength of the
registered Ext.128 sale deed executed by the
defendants.
31. The long and short of this long discussion is that for
all the reasons mentioned above, the decision of the
High Court on the validity of the sale transaction covered
under the sale deed dated 04.07.1978 executed by the
second defendant in favour of the first defendant, in
terms of the provisions under the Fragmentation Act
(when that question was not legally available to be
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considered in the subject suit) and the virtual declaration
of the said sale as void, are absolutely unsustainable. It
is the product of erroneous assumption of jurisdiction
and also erroneous and perverse appreciation of
evidence. It being the foundation for holding the
registered sale deed dated 21.04.1979 (Ext.128) as void
under Sub-section (1) of Section 9 of the Fragmentation
Act, it is unsustainable. The various reasons mentioned
above would support our conclusion as above.
32. Having held as above, we will now proceed to
consider the question whether the upturning of the
judgment and decree of the First Appellate Court, which
held the sale deed dated 21.04.1979 (Ext.128) as one
transferring ownership of the suit land by the plaintiff, by
the High Court can be sustained. There can be no doubt
with respect to the position that where a deed of sale had
been duly executed and registered, its delivery and
payment of consideration have been endorsed thereon
it would amount to a full transfer of ownership so as to
entitle its purchaser to maintain a suit for possession of
the property sold. The very object of the mandate for
registration of transfer of an immovable property worth
more than Rs. 100/- under Section 54 of the Transfer of
Property Act, 1882, read with Section 17 of the Indian
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Registration Act, is primarily to give certainty to title.
When execution is challenged, registration by itself is no
proof of execution and proof of complying with Section
67 of the Evidence Act is necessary. There can be no
reason to disbelieve a recital contained in a registered
sale deed regarding payment of consideration,
executed by the vendor. Hence, if it is said to have
already been paid, going by the registered sale deed,
certainly it is for the vendor asserting non-passing of
consideration to prove the said asserted fact. Bearing in
mind the aforesaid aspects the aforesaid question has to
be approached.
33. It is common case that the sale deed dated
21.04.1979 (Ext.128) is registered and its executants viz.,
the first defendant endorsed its execution and fully
endorsed its contents and the second executant viz., the
second defendant also endorsed its execution, but
depose differently on its intention. Thus, the admitted
position is that its execution and registration is not in
dispute. Since it is a registered sale deed and its
execution is not in dispute it must carry a presumption
that the transaction was a genuine one. Thus, evidently,
the dispute is only in regard to the nature of transaction.
Being a registered one and apparently containing the
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stipulations of transfer of right, title and interest in favour
of the vendee on the land involved therein and
described therein and also recital regarding receipt of
sale consideration the burden was entirely on the second
defendant to establish otherwise and to prove that it did
not reflect the true nature of transaction. A perusal of
Ext.128 would reveal that the extent of property is
recorded therein as an area of ‘1 Hector, 42 R (3.20)’ in
Survey No. 20/2 of village – Gangalgaon, Taluk – Chikhli
of Buldana District. Before delving further into the
matter, it is relevant to note that the First Appellate Court
observed and held, after appreciating the evidence on
record, that as relates one acre out of the total extent of 3
acres 20 guntas sold by the second defendant comprised
in Survey No. 20/2 as per Ext.128, the second defendant
did not have any grievance. In other words, what was
found was that the grievance was only relating the
balance extent of 2 acres and 20 guntas comprised in
Survey No. 20/2 which, as per records, sold earlier by
the second defendant, as per sale deed dated
04.07.1978, to the first defendant. In this context, it is also
pertinent to note that in paragraph 24 of the impugned
judgment the Hon’ble High Court itself observed and
held, as extracted hereinabove, that the defendant No. 2
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did not dispute that he had sold one acre of land to the
plaintiff as per the sale deed (Ext.128) for the
consideration of Rs. 3000/- and that he had shown his
readiness and willingness to deliver the possession of it
to the plaintiff. Paragraph 26 of the impugned judgment
would show that while rejecting the finding of the First
Appellate Court on the inconsistency of the stand of the
second defendant the High Court held thus:-
“There is no inconsistency in the stand taken by the
defendant No. 2 either in the written statement or in
the notice at Exhibit 113. The defendant No. 2 is
consistent in his stand that he has sold one acre of
land by the sale-deed at Exhibit 128 for a total
consideration of Rs. 3000/-, but has denied to have
sold 2 acres and 20 guntas of land to the plaintiff.”
When that be the indisputable factual position all the
other contentions raised by the second respondent
against the plaintiff, including money lending, non-
passing of sale consideration in respect of the said extent
of one acre would all become inconsequential and
unsustainable and unnecessary to be gone into. Even
otherwise, in view of the factum of registration of Ext.128
and admission of its execution and the recording of
payment of consideration thereon, the second
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respondent was not justified in raising grievance,
initially, even against the sale of the aforesaid extent of
one acre.
34. Now, what remains to be looked into is the
grievance of the second respondent with respect to the
balance extent of 2 acres and 20 guntas involved in the
transaction. In the context of the contentions raised by
the second defendant viz., the first respondent in this
appeal, what is relevant and crucial is not only the factum
of registration of Ext.128 and its execution by the second
defendant but also the admission of execution of sale
deed dated 04.07.1978 by him in favour of the first
defendant. True that the second defendant contended
that it was executed as a collateral security for a money
lending transaction. We have noted earlier, by referring
to the decision in Rohit Singh’s Case (supra) that a
defendant could not be permitted to raise counter-claim
against a co-defendant as by virtue of Order VIII Rule 6A,
CPC, it could be raised by a defendant only against the
claim of the plaintiff. Evidently, the High Court did not
frame the validity of the sale deed dated 04.07.1978
executed by the second defendant in favour of the first
defendant as a question of law though the trial Court also
arrived at a finding on this issue without framing it as a
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specific issue. The indisputable fact is that the said sale
deed dated 04.07.1978 was admittedly, executed and
registered about nine (9) months prior to the execution
and registration of Ext. 128 sale deed. Ext. 128 would
reveal that it involves the entire extent of 3 acres 20
guntas in Survey No. 20/2 of Gangalgaon village and the
first defendant is also an executant of the same. The
observation and finding of the High Court in the first limb
of paragraph 24 of the impugned judgment that the
second defendant did not dispute the sale of one acre of
land to the plaintiff as per Ext. 128 for the consideration
of Rs. 3000/- would indicate that the balance amount of
Rs. 7000/- was the consideration for the balance extent
of land covered under Ext. 128. Since the validity of the
sale deed dated 04.07.1978 was not an issue/question
that could be raised by the second defendant against the
first defendant in the subject suit and was rightly, not
raised as an issue, the first defendant not only did not
dispute the sale of such extent to the plaintiff but
admitted the joint execution of Ext. 128 and receipt of
sale consideration, as incorporated in Ext. 128 and since
the second defendant got no case that he had assailed
the validity of the sale deed dated 04.07.1978 either
before any competent authority or competent Civil Court
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this question needs no further elaboration. An inter-se
dispute on the validity of the sale deed dated 04.07.1978,
if at all between the second and first defendants, could
not have been considered in the subject-suit, for the
reasons already mentioned as it would amount to
adjudication of right or a claim, by way of counter-claim
by one defendant against his co-defendant. Finding on
its voidness under the Fragmentation Act was already
held as unsustainable by us.
35. In the context of the contentions of the second
defendant/the first respondent herein against Ext. 128,
taking note of its registration and the admission of its
execution it is only proper to refer to Sections 91 and 92
of the Evidence Act. Certainly, parol evidence is
admissible to show that a contract embodied in a
document was never intended to be acted upon but was
made for some collateral purpose. But, in view of the
specific finding in the judgment of the High Court, which
is in favour of the second defendant, that the consistent
stand of the second defendant is that he has sold one acre
of land by the sale deed at Ext.128 for a total
consideration of Rs. 3000/- and admission of execution of
sale deed dated 04.07.1978 in favour of the first
defendant and in the absence of anything on record
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establishing annulment of the said sale deed and also in
view of the fact that the first defendant is also a co-
executant. We do not think it proper or necessary to
enter into the extrinsic evidence relating sale transaction
covered by sale deed dated 04.07.1978. It is to be noted
that here, by virtue of Section 54, of the Transfer of
Property Act and Section 17 of the Registration Act and
since the immovable property was worth more than Rs.
100/- Ext.128 was reduced in writing and registered.
The intention of the parties are also reflected specifically
in Ext.128 and at the same, nothing reflecting a contra-
intention not to pass the title and ownership in present
even impliedly therein. In other words, the need to take
into consideration the surrounding circumstances and
the conduct of parties in deciding the passing of title
would arise only if the recitals in the document are
indecisive and ambiguous. The oral evidence of the
second defendant could not override the registered Ext.
128 sale deed, as held by the First Appellate Court in the
facts, circumstances and evidence on record in this case.
In such circumstances, no other question(s) need be
considered. The upshot of our consideration as above,
is that the High Court has committed a serious error
based on perverse appreciation of evidence, in setting
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aside the judgment and decree of the First Appellate
Court decreeing the subject suit and in restoring the
decree of dismissal of the suit of the trial Court.
36. In the result, we allow the appeal with costs and set
aside the judgment and final order dated 30.10.2015 in
Second Appeal No. 435 of 1995 passed by the High Court
of Judicature at Bombay, Nagpur Bench restoring the
decree of the court of Joint Civil Judge, Junior Division,
Chikhli in Regular Civil Suit No. 257 of 1985.
Consequently, we restore the judgment and decree of
the Court of Additional District Judge, Buldana in Regular
Civil Appeal No. 98 of 1987 arising from the judgment
and decree in Regular Civil Suit No. 257 of 1985.
….…...............,J.
(M.R. Shah)
.........................,J.
(C.T. Ravikumar)
New Delhi;
May 04, 2023
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