Second Appeal No. 188 of 2010. Case: Kashinath and Ors. Vs Osman Baig Sandu Baig and Ors.. Bombay High Court

Case Number:Second Appeal No. 188 of 2010
Party Name:Kashinath and Ors. Vs Osman Baig Sandu Baig and Ors.
Counsel:For Appellant: Charuta S. Deshmukh, Advocate
Judges:T. V. Nalawade, J.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Section 145; Indian Evidence Act, 1872 - Sections 101, 102, 59, 61, 62, 63, 63(5), 64, 65, 65(c), 67, 92, 92(1); Specific Relief Act, 1963 - Sections 16(c), 20, 20(a)(b); Transfer of Property Act, 1882 - Section 54
Judgement Date:December 10, 2015
Court:Bombay High Court
 
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Judgment:

T. V. Nalawade, J.

  1. The appeal is filed against judgment and decree of Regular Civil Appeal No. 116/1984 which was pending in District Court, Aurangabad. The appeal of present respondents, original defendants filed against judgment and decree of Special Civil Suit No. 51/1980 is allowed by the District Court and the decree given by the Trial Court of specific performance of contract is set aside. The original plaintiff has filed the present appeal. Both the sides are heard.

  2. Two agricultural lands like land bearing Survey No. 18, admeasuring 12 Acre 1 Gunta and Survey No. 14, admeasuring 19 Acres 8 Gunta situated at village Maosala, Tahsil Khultabad, District Aurangabad were owned by Sandu Baig. Land Survey No. 14 is also known as Godhya Ambacha Inam. Sandu is dead and defendants are the successors of Sandu.

  3. It is the case of plaintiff appellant - Kashinath that Sandu was in need of money and so, he expressed to plaintiff that he wanted to sell aforesaid two lands. It is the case of plaintiff that Sandu then agreed on 27.4.1977 to sell the aforesaid two lands for total consideration of RS. 42,000/-. It is the case of plaintiff that on the same date, the agreement was written and it was registered. It is contended that on 27th April, amount of Rs. 35,000/- was paid to Sandu as earnest money and the remaining amount of Rs. 7,000/- was to be paid at the time of execution and registration of the sale deed. The sale deed was to be executed after obtaining necessary permission from authority. The charges of the registration and obtaining permission were to be paid by the plaintiff, purchaser.

  4. It is the case of plaintiff that brother of plaintiff namely Mahadu was in possession of both the lands since the years 1974-75, but Sandu was not ready to mention in the agreement that the possession was handed over to plaintiff unless the entire consideration was paid to him. It is contended that plaintiff was interested in having such recital in document and so, he paid the remaining amount of consideration of Rs. 7,000/- to Sandu on 28.4.1977 and on that date, Sandu executed Bharna Pavti in favour of plaintiff. It is contended by the plaintiff that in Bharna Pavti, there was mention of receipt of money and there was mention of handing over of possession of two lands to the plaintiff. It is the case of plaintiff that said Bharna Pavti was produced by him in Regular Civil Suit No. 532/1979 which was filed by the present respondents, successors of Sandu.

  5. It is the case of plaintiff that during the lifetime of Sandu, Sandu avoided to execute the sale deed under one or other pretext. It is contended by the plaintiff that after 28.4.1977, many times he had requested Sandu to execute the sale deed and he had informed that there was no necessity of any permission for execution of sale deed. It is the case of plaintiff that after the death of Sandu, he approached the successors of Sandu, defendants and he requested them to execute the sale deed, but they also avoided to execute the sale deed. It is the case of plaintiff that he was always ready and willing to perform his part of contract, but the defendants have avoided to execute the sale deed.

  6. It is the case of plaintiff that Bharna Pavti dated 28.4.1977 produced in Regular Civil Suit No. 532/1979 is missing and so, he is entitled to lead secondary evidence in respect of Bharna Pavti. It is the case of plaintiff that due to action of defendants like filing of suit bearing No. 532/1979, there is threat to his possession and so, he has filed the suit. The suit came to be filed on 25.4.1980. During implementation of consolidation scheme, these two survey numbers were merged to create Gat No. 30.

  7. The defendants filed joint written statement. They denied that prior to 27.4.1977 brother of plaintiff was in possession of these lands. They denied that on 27.4.1977 Sandu agreed to sell the two lands for consideration of Rs. 42,000/- to the plaintiff. They denied that on 28.4.1977 Sandu had executed Bharna Pavti and he had received amount of Rs. 7,000/- more from plaintiff and he had also given possession to plaintiff. It is the case of defendants that Sandu was in possession of both the lands till his death. It is contended that defendant No. 1, son of Sandu, was in need of money as he wanted to purchase a truck for transport business and so, he requested plaintiff to give loan of Rs. 30,000/-. It is contended that as the plaintiff wanted some security in respect of this amount, one agreement was executed in favour of plaintiff on 27.4.1977. It is contended that some interest was given to plaintiff and so, the amount of Rs. 28,000/- was actually paid to defendants, but in the document, it was shown that the amount of Rs. 35,000/- was paid by plaintiff to defendants. It is contention of defendants that possession was not given on 27.4.1977 or subsequent to that, at any time.

  8. It is the case of defendants that Sandu had obtained occupancy right in respect of Survey No. 14 which was Inam land and the land was also known as Godhya Ambacha Inam. It is contended that in view of this circumstance, it was not possible to sell this land as there is prohibition under Inam Abolition Act to sell such land. It is contended that by joining hands with the revenue authority, plaintiff somehow got entered his name in revenue record in ownership column and also in possession column. It is contended that he used the circumstance that consolidation of lands was going on. It is contended that as there was no agreement of sale, there is no question of giving reliefs claimed. They contended that they are ready to return the amount taken as loan.

  9. Issues were framed on the basis of aforesaid pleadings. Both the sides gave evidence. The Trial Court had held that there was agreement of sale and even Bharna Pavti was executed on 28.4.1977 in favour of plaintiff. Thus, the Trial Court had held that entire amount of consideration was paid by plaintiff to Sandu and his family members and the reliefs claimed were given. The First Appellate Court has set aside the decision of the Trial Court and it is held that it was a loan transaction. Equitable relief is given by the First Appellate Court to plaintiff and a direction is given to defendant to pay the amount of Rs. 42,000/-.

  10. This Court (other Hon'ble Judge) admitted the appeal on 9.8.2011 on following substantial questions of law:--

    (1) Whether the findings of the first appeal Court on the questions; (i) the purport of the agreement, (ii) proof of bharna-pawati, and (iii) delivery of possession, are perverse?

    (2) Assuming the appellants succeed in proving the agreement, whether they make out a case for discretion for grant of specific performance?

  11. The case of the plaintiff is based entirely on secondary evidence as he did not produce the original agreement dated 27.4.1977 and he was not having even a copy of so called Bharna Pavti dated 28.4.1977. Certified copy of registered agreement of sale is, however, produced on the record. Plaintiff examined himself and some witnesses to give evidence on these two documents and some circumstantial evidence is also given. It appears that permission was given in trial Court to the plaintiff to lead secondary evidence in respect of both the documents. This Court, at this stage, is not expected to go into the propriety or legality of granting such permission. However, it needs to be kept in mind that the requirements which are there in the Evidence Act for proof of execution and also for proof of contents of documents and the transaction need to be fulfilled. The other requirement regarding validity of the document also need to be kept in mind. It is the case of plaintiff that in Bharna Pavti not only the receipt of amount was acknowledged, but the possession was also given.

  12. The Trial Court had started with the presumption that in view of the existence of registered agreement of sale, it was not possible for it to consider the oral evidence of defendants and circumstances on the basis of which the defendants wanted to prove that it was a loan transaction. This point is addressed by the First Appellate Court by discussing the provision of section 92 of the Evidence Act and the necessary discussion in that regard is made by this Court at proper place.

  13. It is already observed that plaintiff is relying on the secondary evidence and for that also, he was expected to prove the things like execution of document and contents of the document. Relevant provisions in that regard are quoted hereinafter.

  14. The provision of section 59 of the Evidence Act reads as under:--

    59. Proof of fact by oral evidence.--All facts, except the contents of documents or electronic records, may be proved by oral evidence.

    Thus, the ordinary rule is that for proving contents of document, the document itself is the best evidence. Section 61 of the Evidence Act relaxes this rule. Section 61 and other provisions show that when there are circumstances due to which it is not possible to produce the document and the grounds mentioned in the provision of Chapter V of the Evidence Act are available, the contents of the document can be proved by secondary evidence also. The provision of section 61 makes it clear that the contents of the document can be proved by primary or secondary evidence. In section 62 of Evidence Act, the meaning of 'primary evidence' and 'secondary evidence' is given and it is mentioned that the original document itself means primary evidence. In section 63 of the Evidence Act, the meaning of 'secondary evidence' is given. Section 63(5) of the Evidence Act shows that oral account of contents of document can be accepted as secondary evidence. In section 64 of the Evidence Act, it is again mentioned that the document must be proved by the primary evidence expect in cases mentioned in section 65 of the Evidence Act. In the present matter, original documents are lost and so, as provided in section 65(c), secondary evidence is permissible. The aforesaid provision...

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