1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.186 of 1989 Shaikh Kattu s/o Shaikh Kasim age major, occupation business, resident of Kadrabad, Jalna, appellant/ District Jalna. Plaintiff. versus Syed Yousuf alias Syed Isa s/o Syed Ahmed, age 32 years occupation:business,resident of Kadrabad Loha Bazar, Respondent Nehru Road,Jalna,Dist.Jalna Defendant/ WITH Second Appeal No. 269 of 1989 Shaikh Kattu s/o Shaikh Kasim age major, occup. Pan Merchant, resident Kaikadi Mohalla, Old Appellant/ Jalna, District Jalna. Defendant versus Sayed Yousuf alias Sayed Isa s/o Sayed Ahmed, age major, occupation business, resident of Rangar Khidki, Kadrabad, Respondent Jalna, District Jalna. Plaintiff 2 ------- Shri K.G.Khadar, Advocate, for appellant. Shri H.K.Mundhe, Advocate, for respondent. Coram: P. R. Borkar J. Judgment reserved on: 22/07/2009 Judgment pronounced on: 27/07/2009 JUDGMENT. 01. These two Second Appeals are filed by Shaikh Kattu against the judgment and decrees passed in Regular Civil Appeal Nos.84 and 85 of 1982 decided by learned II Additional District Judge, Jalna, by common judgment delivered on 5.11.1988. 02. Second Appeal No.186 of 1989 is directed against the decision in Regular Civil Appeal No. 85 of 1982 whereby learned II Additional District Judge Jalna dismissed the suit bearing R.C.S. No. 63 of 1980 filed by present appellant Shaikh Kattu against the respondent Sayed Yousuf. The suit was earlier decreed by II Joint Civil Judge, Junior Division, Jalna, vide judgment and order dated 29.3.1982. The said suit was for declaration that the sale deed dated 15.3.1978 produced at Exhibit 31 executed by present appellant in favour of the respondent was with oral agreement of repurchase and therefore the appellant was entitled to get specific performance of re- 3 conveyance and also delivery of possession. 03. Second Appeal No.269 of 1989 filed by appellant Shaikh Kattu is directed against judgment and decree passed in Regular Civil Appeal No.84 of 1982 which was allowed by II Additional District Judge, Jalna, on 5.11.1988. Learned II Additional District Judge, Jalna, decreed R.C.S. No.66 of 1980 which was filed by present respondent Sayed Yousuf against the appellant Shaikh Kattu for declaration of ownership and injunction. The District Court thereby reversed the dismissal of said R.C.S No.66 of 1980 recorded by the learned II Joint Civil Judge, Junior Division, Jalna on 29.3.1982. 04. Briefly stated, the facts giving rise to these two appeals are that the appellant Shaikh Kattu was the owner of municipal house bearing No.1422, plate No.2-16-3 situated at Kadrabad, Jalna. By sale deed dated 15.3.1978 the property was sold by the appellant to the respondent for a consideration of Rs.3,000/= and possession was delivered. It is the case of the appellant that nominal sale deed was executed as the appellant was in need of money and it was orally agreed between the parties that within two years the appellant would repay Rs.3,000/= to the respondent and the respondent would execute re-conveyance deed in favour of the appellant. Until then, the 4 respondent was to remain in possession of the property; he was not to pay any rent nor the amount of Rs.3,000/= was to carry any interest. According to the appellant, he approached the respondent with money and requested him to execute reconveyance, but the respondent refused and thereafter the appellant issued notice to which false reply was given by the respondent. Therefore, the appellant filed R.C.S. No. 63 of 1980 for specific performance of agreement for re- conveyance of the property. 05. On the other hand, Respondent filed suit bearing R.C.S No.66 of of 1980 for declaration of his ownership and for perpetual injunction, alleging that he is the owner and possessor of the property and without any reasons, the appellant was disturbing his possession. 06. As stated earlier, the trial court dismissed the suit filed by the respondent and decreed the suit filed by the appellant. As against the said judgments and decrees, Respondent Sayed Yousuf filed Regular Civil Appeal Nos.84 and 85 of 1982 in the District Court which came to be allowed by II Additional District Judge, Jalna by common judgment delivered on 5.11.1988, thereby decreeing the suit bearing R.C.S. No.66 of 1980 filed by Respondent Sayed Yousuf and dismissed the suit bearing R.C.S. No.63 of 1908 5 filed by the appellant Shaikh Kattu. In these circumstances, present Second Appeals are filed by Appellant Shakh Kattu. 07. Both these appeals came up for admission together and are admitted on 20.11.1989 on substantial questions of law raised by grounds viz. ground Nos. 2, 3, 4, 6 and 9 of appeal memos in both the appeals. Those grounds are as follows. " (2) The crux of the matter is the transaction of reconveyance, as the original transaction was not out and out sale, but it was a nominised one for the ostensible price of Rs.3,000/= for whose security, a nominal writing was executed on 15th March 1978. The nature of transaction is, therefore, a substantial question of law for this appeal. (3) There was an agreement in between the parties that the vendee (Respondent) may not charge any interest on Rs.3,000/= (wrongly mention as Rs.300) till the amount was paid. The vendee should have possession of the suit premises in question. On the full discharge of payment of Rs.3,000/= the property in dispute is to be reconveyanced. The back ground of the 6 transaction as was then in existance at the time of the transaction on 15th March 1978 would be revealed by the fact that during this period full clearance of the amount, the vendee (Respondent) should not mutated his name. The appreciation of the real terms of the transaction in between the parties, is the substantial question of law for this appeal. (4). The learned Judge in the Appeal Court had only looked to the form of the transaction and had completely missed the spirit. In other words the substance of the transaction has been sacrificed to the appearance and form of the document. (6) As is generally known, that there are occasion in which one has to read in between the lines, have also the same thing was required to be done. Unfortunately, the learned Appellate Judge in the Court below did not take the trouble of finding out as to what was the real intent of the parties in executing the sale-deed in the first intance and thereafter doing nothing for getting the necessary mutations and change in the title. This conduct speaks volumes about the sale-deed being only treated by the 7 parties as ostensible and nominal and to use the common parlance, the sale deed was taken only for the security of amount advanced by the Respondent. " 08. Heard Advocate Shri K.G.Khadar for the appellant and Shri H.K.Mundhe for the Respondent. Advocate Shri Khadar submitted that the evidence is not properly appreciated by the learned first appellate court and it has come to a wrong conclusion that there was no oral agreement of sale. The trial court took into consideration the fact that prior to the transaction between the appellant and the respondent, the appellant had executed sale deed dated 22.8.1977 (Exh.30) in favour of one Mohammad Musa. The appellant also proved that he repurchased the suit house from Mohd. Mussa on 13.3.1978. Thus, it is submitted that for repurchasing the house from Mohammad Musa, the transaction must have been entered into and the trial court has also come to a conclusion that this immediate transaction of repurchase of the property followed by sale of the same to the present respondent for Rs.3,000/= on 15.3.1978 clearly substantiates the case of the appellant that there was oral agreement for repurchase. 09. In support of of his case, the appellant examined himself on oath at Exh.29. He also examined one Karim Khan as his witness at Exh.35. 8 On the other hand, Respondent examined himself at Exh.37 and one attesting witness Mohammad Ayub at Exh.38. The appellant and his witness both stated that there was oral agreement for repurchase, whereas the respondent and his witness denied that there was any oral agreement for repurchase and, therefore,the trial court and the first appellate court considered various circumstances. 10. The trial court observed that as per the evidence of the appellant and plaint paragraph 10, while executing the sale deed between the appellant and the respondent, it was agreed between them that no mutation in respect of house would be effected in the record of municipal council, Jalna, or city survey office. The appellant has come with a case that when the respondent made application to municipal council, Jalna for mutation in his name and as soon as the appellant came to know about the same, that application was challenged by the appellant by filing objection letter at Exh.32. The court observed that this conduct of the appellant is consistent with his case. It is also noted by the trial court that though admittedly sale deed was dated 15.3.1978, no repairs of the house were carried out by the respondent till the date of the judgment. On the other hand, whenever respondent wanted to effect the repairs, the appellant had objected to the same. The appellant also stated 9 that the market price of the house property was Rs.15000/= in the year 1978 which, according to him, has gone unchallenged. The trial court also noted that as per the oral agreement for reconveyance, purchase was to be made within two years and before expiry of that period, suit was instituted on 28.2.1980 and thus, the conduct of the appellant-plaintiff is consistent with his pleadings and he was ready and willing to perform his part of the contract. 11. On the other hand, the first appellate court considered that the oral agreement was not reduced to writing and the reason given by the appellant was that he had confidence in the respondent, but that reason is not sufficient. According to learned Additional District Judge, there could have been simple agreement of sale as it did not require registration. He also observed in paragraph 17 of his judgment that the evidentiary value of the contents of a registered document would be more than the oral evidence. This appears to be not a correct approach. Oral evidence ought to have been assessed and evaluated and it should have been decided whether it was worth acceptance. Similarly, it is observed that mere opposition to mutation is not enough because in the sale deed itself it was mentioned that the vendee can get his name entered in the municipal record. The first appellate court further 10 observed that the best evidence would have been of attesting witness, but no attesting witness is examined by the appellant. It is further observed that PW-2 Karim Khan was related to the appellant and was adversely interested against the vendee. Karim Khan admitted that his daughter was not maintained by brother of the respondent and, therefore, he must be interested in deposing falsely. The learned II Additional District Judge allowed the appeal. In my considered opinion, reasons given for rejecting the case of the appellant are not sufficient and convincing. 12. Both Courts did not discuss oral evidence in detail. So,we may refer to oral evidence. At exh.29, there is a statement of the appellant- plaintiff Shaikh Kattu. He stated that initially he had approached Karim Khan for money, who was his near relation, but Karim Khan had no money and, therefore, they both approached the respondent who agreed to advance Rs.15,000/= but on condition that nominal sale deed should be executed in his favour. Accordingly, the appellant executed sale deed in favour of the respondent. Thereafter the appellant requested the respondent to execute an agreement for reconveyance to which the respondent agreed, provided the appellant pays back the entire amount of Rs.3,000/= within a period of two years. It was agreed that there would not be rent for occupation 11 of house by respondent nor any interest would be charged on the amount of Rs.3,000/=. According to the appellant, the suit house was constructed in bricks and mud and its market price was Rs. 15,000/=. According to the appellant, at the time of agreement for reconveyance, besides himself and respondent, his Advocate Shri Paralikar and relative Shri Karim Khan were present. The appellant further deposed that the respondent did not executed agreement of reconveyance in writing, stating that he would not deceive the appellant. The appellant further stated that till the date of his deposition, he was paying municipal taxes/charges. This statement was not denied anywhere by respondent and the said circumstance is consistent with the case of the appellant. The appellant further deposed that two months before expiry of two years period he went to offer amount, but the respondent drove him out of house. So, he approached Karim Khan and both of them requested the respondent for reconveyance, but since the respondent refused, the appellant issued notice at Exh.33 to which the respondent gave false reply at Exh.34 and under such circumstances the appellant filed suit. 13. It may be noted that it in the cross examination of the appellant, it was brought on record that he had entered into transaction of sale with one Mohammad Musa and he repurchased the 12 property. No doubt, copies of those sale deeds are on record. It is also brought in the cross- examination that Mohammad Musa was in need of money at that time and, therefore, there was reconveyance of Mohammad Musa and the appellant demanded money from Respondent-defendant, who paid an amount of Rs.2100/=. Recitals in the sale deed at Exh.31 clearly indicate that the amount of Rs. 2100/= was paid earlier and at the time of registration, remaining amount of Rs.900/= was paid. So, this indicates that the appellant wanted money as he was required to pay back the purchase price of Mohammad Musa and get back the reconveyance of the house. Ordinarily, there was no reason for the appellant to purchase the house from Mohammad Musa and sell it within two days to the respondent. This probability was not considered and it is more consistent with the case of the appellant regarding the oral agreement of repurchase. 14. PW-2 Karim Khan is not only related not only to the appellant-plaintiff, but he specifically stated that respondent-defendant is the brother of his son-in-law and the appellant is son of his sister. There is nothing on record to show that when the transaction took place in March 1978, the relations between the daughter of Karim Khan and her husband were strained. So, being close relative of both, it is possible that Karim 13 Khan might have acted as a mediator as claimed by the appellant. Karim Khan supported the case of the appellant and stated that 7-8 days after the talks, the sale deed was registered. After the sale deed, the appellant requested the respondent to execute reconveyance deed in writing, but the Respondent insisted with that appellant should repose confidence in him. Karim Khan also stated that he went along with appellant to the house of respondent and offered him Rs.3,000/= and requested him to perform his part of contract viz. to execute reconveyance deed. It is true that Karim Khan has not signed the sale deed but that by itself is not sufficient to hold that he was not mediator. Considering the relations between the appellant and Karim Khan on one hand and between the respondent and Karim Khan on the other, it was but natural for the appellant to first approach Karim Khan and then through him to the Respondent. Karim Khan was good enough to admit that his daughter was not being maintained by respondent's brother, but he denied that he was deposing falsely due to strained relationship. 15. On the other hand, evidence of the respondent at Exh.37, clearly indicate that according to him, amount of Rs.2100/= was paid on 14.3.1978 to the appellant and appellant put him in possession of the property. According to the respondent, there was no oral agreement for 14 repurchase or reconveyance of the property. The respondent stated that he did not enquire when the suit house was constructed. There were about 5-7 broken tin sheets and 10-12 tiles on the suit house. The height of the house was 8 ft. and it was having 2 doors. The house was admeasuring 17 x 15 ft. in size situated on Raj Mahal Talkies road, Jalna. Respondent did not say that he made any repairs nor contradicted the evidence of the appellant. Ordinarily, the respondent would have repaired the house and would not have allowed the broken tin sheets to be on the house. Cross examination of the respondent shows that on the date of registration, an amount of Rs.2100/= was paid but that is not so as per the sale deed. The the sale deed shows that Rs.2100/= were already paid to the appellant. DW-2 Mohammad Ayub in his examination in chief did not say anything about the talks between the appellant and the respondent regarding sale. All that he said is that he had attested the sale-deed (Exhibit 31). So, it is possible that he might not have been present when the negotiations for transaction took place. So, he may not be aware of the agreement for repurchase or re-conveyance of the property. He said that there was no talk or agreement for repurchase in his presence. According to DW-2, Karim Khan was not present at the time of registration. This witness stated that he was not aware if any one was asked to draw map of the 15 house. In fact, sale deed Exh.31 refers to the map and portion shown in red colour in the map as a part of the sale deed. 16. Considering the totality of the facts and circumstances and the evidence on record, the view taken by the trial court is preferable. It is more consistent with the facts and evidence on record. Unfortunately, both the courts did not refer to the oral evidence of the witnesses and mainly discussed probabilities. Be that as it may. Having regard to the facts and evidence produced on record, in my opinion, the First Appellate Court ought not to have interfered with the judgment of the trial court. 17. These two appeals, therefore, will have to be and are accordingly allowed. The judgment and decree passed by the First Appellate Court in Regular Civil Appeal No.85 of 1989 dismissing Regular Civil Suit No.63 of 1980 filed by present appellant is set aside. It is directed that the appellant-plantiff shall deposit in court Rs.3,000/= within a period of two months from today. In such event, the respondent-defendant shall execute reconveyance deed in respect of the suit property in favour of the appellant-plaintiff. In case respondent fails to execute the reconveyance deed, though the 16 appellant has deposited Rs.3,000/= in the court within two months, the appellant would be entitled to get reconveyance of the suit property executed through the court. In case Rs.3,000/= are not deposited by the appellant in the court within two months as directed, the relief of specific performance of oral agreement for reconveyance shall stand dismissed automatically. In case reconveyance deed is executed by the respondent or through court, the respondent shall deliver possession to the appellant-plaintiff. 19. The judgment and decree passed by the First Appellate Court in Regular Civil Appeal No. 84 of 1982 is hereby set aside and Regular Civil Suit No.66 of 1980 filed by present respondent against the present appellant is hereby dismissed. In the facts and circumstances, parties to bear their own costs. pnd/sa86.89 (P.R.BORKAR, J.)