1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.482 OF 1991 Sk.Nizam s/o Sk. Gulab Age: 30 Yrs., occu. Agril. r/o Navgaon, Post Navgaon, Tq.Paithan, Dist.Aurangabad. .. APPELLANT (orig.Plaintiff) VERSUS 1) Sk.Shafi s/o Sk.Baba Age:25 Yrs., occu.Agril. 2) Bismillabi w/o Sk.Baba, Age: 50 Yrs., occu. Agril. 3) Ibrahim s/o Walekhan Age:Major, occu.Agril. All R/o village Navgaon, Tq.Paithan, Dist.Aurangabad. .. RESPONDENTS (orig.Defendants) ***** Mr.M.D.Joshi, Advocate for Appellant; Mrs.A.N.Ansari, Adv.for Respondent nos.1 & 2.; Mr.A.D.Sugdare, Adv. For Respondent No.3. ----- CORAM : K.U.CHANDIWAL, J. DATE : 17th July, 2009. ORAL JUDGMENT : 1) Heard Counsel extensively. 2) The concurrent findings recorded against 2 the plaintiff is the subject of challenge in the Second Appeal. 3) On 29.11.1991, at the time of admitting the appeal, Grounds nos. (2) to (5) were treated to be as substantial questions of law between the parties, which are as under - (2) Both the Courts have failed to see that the title is already passed in respect of the suit property to the appellant/plaintiff by registered sale deed executed by the defendant no.1 and 2 and there was nothing left or any interest was left with the defendants no.1 and 2 to pass it on to the defendant no.3 and it should have been held that the defendant no.3 does not get any rights or interest. (3) Both the courts have failed to see and particularly the Additional District Judge has failed to see the defendants have set-up a plea of fraud. The fraud has to be 3 pleaded and necessary particulars are to be given in the pleadings. The defendants have not given the necessary particulars of fraud as required by law in the pleadings and, therefore, the plea of fraud should have been dis-believed. (4) The Additional District Judge has failed to see that the plaintiff had made an application to amend the plaint and include the relief of possession and, therefore, possession should have been ordered to be delivered the plaintiff on the basis of title. (5) The Additional District Judge has failed to see that some transaction is admitted by the defendants no.1 and 2 and also the execution of the sale deed in favour of the plaintiff and in view of the evidence the Additional District Judge and the trial 4 Court should have held that the title is passed upon the appellant.” 4) The plaintiff came with a case of purchase of agriculture property from defendant nos. 1 and 2 by virtue of sale deed dated 27.4.1979 (Exhibit-64), duly registered before the Registrar at Paithan. It was in pursuance to the agreement of sale executed by defendant nos. 1 and 2, initially in favour of one Mamtabai, dated 20th July, 1978, which did not yield its fruits and consequently, sale deed, Exh.64, referred above came to be executed. 5) The vendor – Bismillabai did not categorically dispute of her executing the sale deed in favour of Sk.Nizam, the plaintiff, having signed by her son Sk.Shafi also. However, she contended, she had sold a plot at Paithan for Rs. 1500 to the plaintiff – Shaikh Nizam and a fraud is played by Sk.Nizam on her. This submission though are indicated in the evidence of Smt. Bismillabai, does not find its roots in the pleadings. The provisions of Order VI Rule 14 5 contemplate, particulars of fraud or misrepresentation are prerequisite, and unless it is so pleaded, there cannot be and should not be a finding contrary to the pleading. Mere submission that there was cheating by the plaintiff, that by itself is not sufficient to dislodge registered sale deed at Exh.64 executed by defendant nos. 1 and 2 in favour of the plaintiff on plaintiff’s parting consideration of Rs.6,500/-. 6) The finding of the court of first instance, and that of the appellate court, that the sale-deed, (Exh.64), was unregistered, is wild surmise and conjecture of both the courts. What made them to make such observation is difficult to digest as the original record rebels against such finding. Then comes the observation of the court of first instance, that the sale deed (Exh.64), demonstrates inadequate price as against the agreement of sale, Exh.63 dated 20th July, 1978. This was obviously without reference to what has happened between defendant no.1, 2 and Mamtabai. Mamtabai in categorical terms in 6 her evidence, endorsed that the amount, which she has paid as earnest to defendant nos. 1 and 2, was received by her from the plaintiff and naturally it could not have been referred in the sale deed. The possession even if it was given to Mamtabai, based on her agreement of sale, Exh. 63, will not be changing colour and complexion of the matter for the plaintiff staking the claim to possession based on sale-deed, Exh.64. The law is clear, the sale deed is to be considered with possession. Even if there is no possession of the plaintiff, under the statutory arrangement, since he is an absolute owner of the property, having parted consideration, he is entitled for its possession. 7) It was a suit initially for perpetual injunction. The evidence indicate, the witnesses saw the plaintiff to be in possession. It was in the midst high-handedness of the defendant and particularly defendant no.3, the subsequent purchaser dated 11.1.1980, that the plaintiff lost the possession of property. Loosing of possession, does not dis-entitle the plaintiff’s 7 staking claim for possession and getting the plaint amended. The amendment carried by the plaintiff, unfortunately is not coherently adhered to by both the courts and they have given a go-bye to it with no good cause. There are lack of reasons to indicate what made the courts not to entertain decree for possession in favour of the plaintiff. 8) Taking survey of entire evidence, the first Appellate Court was also required to assess the evidence and fact, which unfortunately is not effected. It has deflated the rights accrued to the plaintiff by virtue of the sale deed in his favour. There was no ownership or interest with defendant no. 1, 2 to execute subsequent sale- deed in favour of defendant no.3. Consequently, the substantial questions of law, as formulated herein above, will have to be answered in favour of the appellant herein. ORDER (i) The appeal is allowed with costs; (ii) The judgment and order in RCS No. 45/1980 dated 31.08.1985, passed by the learned 8 Civil Judge, Senior Division, Paithan; and the Judgment and Order dated 11.3.1991 passed in RCA No.232/1985 by Additional District Judge, Aurangabad, is set aside; (iii) The suit of the plaintiff is decreed with costs; (iv) The defendants/respondents to handover possession of the suit property, land Survey No. 112, Gat No.220 to the extent of 2 Acres and 28 Gunthas, situated in village Navgaon, Tq. Paithan, District Aurangabad, subject of Sale- deed (Exhibit-64) dated 27..4.1979 within six months from the order. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/sa482.91 Authentic copy (BD VADNERE,PS)