SA. 76-88 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 76 OF 1988 1. Jaysing Ramu Chavan, Aged 50 years, ) 2. Raghunath Ganu Chavan (since deceased, ) represented through the LRs.) ) 2A. Shrirang Raghunath Chavan, Aged 33 years ) Agriculturist of Vihapur, Taluka Khanapur, ) District Sangli. ) 2B. Suresh Raghunath Chavan, Aged 23 years, ) Agriculturist of Vihapur, Taluka Khanapur, ) District Sangli. ) 2C. Sou. Malan Shashikant Thorat, Aged 20 ) years, Occu.- household, R/o. Walwa, ) District Sangli. ) 2D. Ranjana Balasaheb Jadhav, Aged 18 years, ) Occu.- Household, R/o. Atake, Taluka - ) Karad, District Satara. ) 2E. Housabai Raghunath Chavan, Aged 50 years Occu.- Household work, R/o. Vihapur, ) Taluka Khanapur. ...Appellants SA. 76-88 - 2 - Vs. Ramchandra Bala Chavan (since deceased ) represented through Legal Heirs) ) 1A. Jagubai Sagerao Kadam (Daughter), ) 1B. Tanubai Ramu Chavan (Wife) ) 1C. Putlabai Ramu Chavan (Wife) ) Defendant Nos. 1A to 1C are residing at ) & Post : Vihapur, Taluka Kahegaon, ) District Sangli. ) 1D. Suman Laxman Ingale (daughter) ) Residing at Kondavale, Taluka – Patan, ) District – Satara. ) 1E. Rekha Masing Ghate (daughter), ) Residing at Vihapur, Taluka Kadegaon, ) District – Sangli. ) 1F. Bhajirao Ramchandra Chavan, ) 1G. Chingaubai Gangaram Vetal, ) Defendant Nos. 1F and 1G residing at ) Post Vihapur, Taluka Kahegaon, ) District – Sangli ...Respondents *** Mr. R. A. Thorat & P. J. Thorat, for the Appellants. Mr. N. Y. Gupte with Sachin Kadam & P. P. Bhalbar, for Respondent Nos. 1A to 1E. SA. 76-88 - 3 - *** CORAM: V. M. KANADE J. DATE : APRIL 15, 2011 ORAL JUDGMENT 1. Heard the learned counsel appearing for the appellants & respondent Nos. 1A to 1E. Appellants are the original defendants and respondents are legal heirs of original plaintiff. For the sake of convenience, parties are hereinafter referred to as the ‘plaintiff’ and the ‘defendants’. 2. Brief facts of the case are as under- . Plaintiff was the owner of land Survey No. 243/2, admeasuring 2 Hectares and 22 Ares. Plaintiff mortgaged the suit land in favour of the defendants on 10th June, 1970 for a period of five years for Rs.2,000/-. The plaintiff showed his willingness to repay Rs.2,000/- to the defendants in the month of January 1979, and therefore, filed a suit for possession and for redemption of the mortgage. The defendants filed written-statement, and alleged therein firstly, that the suit was barred by limitation since the plaintiff should have asked for redemption within five years and since they had failed to do that, the suit was not tenable. Secondly, it was contended that the plaintiff had in fact sold the suit land SA. 76-88 - 4 - on 30th April, 1974 by executing a registered sale-deed in favour of the defendants. The plaintiff examined himself (PW 1) and one witness Kondiba Sitaram Kharge (PW 2) whereas defendants examined defendant No.1 Jaysing Chavan (DW 1) and one witness Bhiva Jagu Chavan (DW 2) in support of their case. The trial Court held that plaintiff was not entitled to file a suit for redemption of mortgage. The trial Court, however, held that contention of the defendants that parties plaintiff had executed sale-deed on 30th April, 1974, was not accepted and therefore, plaintiff’s suit was dismissed, in view of finding given on issue No.5. Against the said judgment and order of the trial Court, the plaintiff preferred an appeal before the District Judge, Sangli and the finding that the suit for redemption of mortgage was not maintainable, was challenged in the appeal. The defendants also challenged the finding which was arrived at by the trial Court in respect of the registered sale- deed which was allegedly executed between the plaintiff and the defendants on 30th April, 1974. 3. The Second Appeal was admitted by this Court, on the following substantial question of law- “Whether lower Appellate Court erred in not at all considering cross objection regarding the proof of sale-deed dated 30th SA. 76-88 - 5 - April, 1974 by which suit land was purchased by the defendants and nullity of redemption of mortgage?” 4. At the time of hearing of this appeal, the learned counsel appearing on behalf of the original plaintiff has filed paper-book which enclose copy of roznama of the lower Appellate Court. It is submitted that the cross-objection filed by the defendants/appellants herein in the lower Appellate Court was rejected, as could be seen from the roznama dated 8-10-1987. He submitted that therefore, the substantial question of law which was framed by this Court do not survive. 5. There is much substance in the submissions made by the learned counsel appearing on behalf of the respondent/plaintiff. The roznama dated 8-10-1987 reads as under- ‘”8-10-1987 resume before the court second Addl. DJ. Sangli, Advocate V.D. Jadhav present for applicant. Advocate B. J. Chavan absent for the respondent Order passed by the Asst. Dist. Judge on the application for filing cross objection by the respondent, The original summons was served on deceased respondent long back within one month he did not file cross objection legal heirs of deceased are brought on record to continue appeal as SA. 76-88 - 6 - pending legal heirs have no right to file cross objections as if they are original respondents joinded in appeal. Hence the application is rejected. COD. Arguments of V. D. Jadhav, Advocate for Applicant heard. Advocate B. S. Chavan absent. Adj. For arguments of respondent advocate on 04/11/1987. 04-11-1987 resume before the court Arguments of V.D. Jadhav adv. For the Applicant heard. Advocate B. S. Chavan for respondent absent. Adj. for decision 11/11/1987. 11-11-1987 resume before the court Advocate V. D. Jadhav for applicant Advocate B. S. Chavan absent Judgment:- The appeal is allowed to the cost to the appellant. The decree of lower court is set aside. The plaintiff to deposit with notice to defendant Rs.2000/- within two months from the date of this order. After the receipt of this notice, the defendant to execute registered deed of re- conveyance in favour of the plaintiff along with SA. 76-88 - 7 - delivery of possession. The decree is preliminary and to be made final after fulfilling the above conditions. On failure to deposit the amount within the given time by the plaintiff, the defendants shall be entitled to apply for a final decree for foreclosure. Decree be prepared accordingly. Disposed of IIIrd Addl. Dist. Judge, Sangli” 6. From the roznama, therefore, it is apparent that cross objection filed by the defendants was rejected by the Court. The rejection of the cross-objection has not been challenged by the defendants in this Court. 7. The learned counsel appearing on behalf of the appellants/ defendants submitted that even the Second Appeal was admitted on the substantial question of law, framed by the Court at the time of final hearing of the Second Appeal this Court can consider the other substantial questions of law in view of provisions of Section 100(5) of the Code of Civil Procedure. He submitted that following substantial questions of law are raised in the Second Appeal - SA. 76-88 - 8 - “(a) Whether the Order of the Lower Appellate Court allowing the appeal filed by the Plaintiff and without the assistance and in the absence of Advocate for the Defendants and without making any Orders on the cross objections filed by the Defendants is legal and proper. (b) Whether the Courts below were correct in holding that the Deed of 10th June, 1970 executed by the Plaintiff in favour of the Defendants was a mortgage by conditional sale without referring to the evidence on record. (c) Whether the finding of the Trial Court that the Defendant had not established the Sale Deed executed in their favour on 30th April, 1974 by the Plaintiff is legal having regard to the provisions of the Indian Evidence Act for proof of registered document; (d) Whether the Lower Appellate Court was correct in allowing Appeal without considering the cross objections filed by the Appellants wherein the finding of the Trial Court were specifically challenged is legal and correct; 8. It was strenuously urged that the trial Court erred in discarding the registered sale deed which was executed by the Plaintiff and the defendants, firstly, on the ground that signature of the plaintiff did not tally with signature on the sale-deed. It was submitted that the presumption was raised that a registered document is validly executed and therefore, the onus of proof would be on a person who leads SA. 76-88 - 9 - evidence to rebut the presumption. It was submitted that in the present case, the defendants have not rebutted the said presumption. It is submitted that his contention that at the relevant time, he was working a power loom was not established. The person (PW 2 Kondiba Kharge) examined from the power loom has admitted that no muster roll was maintained and stated that he placed reliance only on the certificate issued by the Chairman of the Society, and therefore, defendants have not established that plaintiff was not working on that date. Further it was submitted that the attesting witness who was examined by the defendants have clearly stated that the plaintiff had signed the said document. He also invited my attention to the evidence of the plaintiff. He submitted that the presumption regarding execution of the registered document was not rebutted and therefore, the finding of the trial Court was liable to be set aside. In support of the said submission, he relied upon the judgment of the Apex Court in the case of – Prem Singh & Ors., Appellants vs. Birbal & Ors, Respondents [2006(5) Mh.L.J. 441]. He also invited my attention to the copy of the registered sale-deed. It is submitted that though the cross-objection was rejected by the lower Appellate Court, this Court while exercising jurisdiction under Section 100 C.P.C. can consider the submissions made on behalf of the appellants SA. 76-88 - 10 - herein/defendants. 9. The learned counsel appearing on behalf of the respondent, on the other hand, submitted that the trial Court had given cogent reasons while deciding the issue about execution of the sale-deed. Apart from considering the signatures of the plaintiff under Section 73 of the Evidence Act, the trial Court had taken into consideration the various circumstances before arriving at a conclusion that reliance could not be placed on the said sale-deed. 10. After having heard both the counsel at length, in my view, submissions made on behalf of the learned counsel for the appellant/ original defendants cannot be accepted. It is no doubt true that presumption is raised that the registered document is validly executed and onus is on the person who disputes the said document. However, initially the presumption which is raised can be rebutted by leading evidence. In the instant case, the plaintiff has denied execution of the document, and has further denied that he was present in the Registrar’s office at the time of execution of alleged sale-deed and therefore, initially burden which was on the plaintiff was successfully rebutted by him, firstly, by virtue of his denial of the signature; secondly, by denial of his presence in the Registrar’s office; and thirdly by examining SA. 76-88 - 11 - himself and one witness PW 2 Kondiba Kharge. Said Kondiba Kharge has stated that muster roll of workers is not maintained. Much emphasis has been laid on the said statement made by this witness. In my view, plaintiff has produced the certificate of his Chairman to show that he was present in the power loom on that date. This fact has been reiterated by his witness PW 2 Kondiba Kharge. Merely because muster roll is not maintained, that would not be the only reason for discarding the evidence of this witness. For the aforesaid reasons, therefore, in my view, plaintiff has successfully rebutted the presumption which was raised. The ratio of the judgment on which reliance is placed by the learned counsel for the appellants, namely, Prem Singh (supra), would not apply to the present case. On the contrary, said judgment clearly supports case of the plaintiff. In paragraph 27, Apex Court has observed as under- “There is presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” 11. In the present case, therefore, initial burden has been SA. 76-88 - 12 - successfully rebutted by the plaintiff and this fact has been considered by the trial Court. Apart from considering this fact, the trial Court has considered various circumstances for not accepting the said registered sale-deed as a genuine document. On the other hand, defendants in support of their case have examined DW 2 Bhiwa Jagu Chavan. In cross- examination this witness has admitted that he did not know that the signatures are that of Jaising i.e. defendant No.1 and Rama i.e. plaintiff on that document. Further he has stated that Jaising i.e. defendant No.1 did not sign the document which he had signed and Raghunath also did not sign that document. He has further stated that plaintiff has signed at one place only on this document. Though the further suggestions about plaintiff not executing the documents, are denied by this witness, the fact remains that his admissions given in the cross examination clearly creates doubts about the genuineness of the document and execution of the document by the plaintiff before the Registrar. In those days, the present system which is in vogue i.e. of taking photograph on the computer of persons who execute the document was not in existence and it was easily possible for one person to impersonate another person as one before the Registrar and the Registrar had to rely on the identification of the parties made by the attesting witnesses. The trial SA. 76-88 - 13 - Court further has observed that there was no necessity for the parties to execute another sale-deed, particularly when the conditional sale-deed itself was to be treated as the sale-deed, if the plaintiff failed to get his land redeemed within stipulated period of five years. The trial Court was, therefore, justified in observing that under these circumstances, there was no necessity for the plaintiff to get another document executed by paying Rs.1,000/- more. While exercising jurisdiction under Section 100 of the Code of Civil Procedure, this Court is not expected to re- appreciate evidence on record. However, I have considered the evidence on record for two reasons; firstly because, the appellants or their advocate did not argue their case before the lower Appellate Court and after waiting for 2-3 days, exparte order on merits was passed by the lower Appellate Court; no application was filed for setting aside the exparte order passed by the Appellate Court as per provisions of Order 41, Rule 21 C.P.C.; and further, the appellants were not aware that their cross objections were rejected by the lower Appellate Court and under these circumstances, I have re-considered the evidence on record. In my view, the trial Court has rightly held that the defendants have failed to prove that the plaintiff had executed a sale-deed in respect of suit land on 30th April, 1974. SA. 76-88 - 14 - 12. The questions of law which are now sought to be raised by the appellants, in my view, cannot be said to be substantial questions of law and in any case those questions have been answered by this Court for the reasons stated hereinabove. Hence, no case is made out for interfering with the impugned judgment and order passed by the lower Appellate Court in the appeal. Second Appeal is, therefore, dismissed. Stay granted by this Court shall continue for a period of 8 weeks. [ V. M. KANADE J.]