1 SA 1/1990 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 1/1990 Omprakash Sangramappa Murke, Appellant ...Orig. Plaintiff. Versus Shankar Mehalsing Swami, died L.Rs. 1a) Parwatibai Shankar Swami, Age : 75, Occu. Household 1b) Uttam Shankar Swami, Age 55 years, Occu. Business, 1c) Ramakant Shankar Swamji, Age : 50 years, Occu. Business. 1d) Siddeshwar Shankar Swami, Age : 47 years, Occu. Business All R/o At Post Hadolti Tq. Ahmedpur. Respondent. Orig. Defendant. Mr. S.V. Chandole h/f Mr. V.G. Sakolkar, Advocate for the applicant. Mr. P.G. Mahalankar, Advocate for respondents No.1 to 4. CORAM : A.V. NIRGUDE, J. DATED : 28th Sept., 2011. ORAL JUDGMENT: 1. This second appeal challenges the judgment and order dated 06th February, 1989 in Regular Civil Appeal No. 148/1987 whereby the appellant’s suit for possession was dismissed. The appellant filed the suit on following cause of action. He said that he purchased the suit shop at village Hadolti Tq. Ahmedpur District Latur from the original respondent / original defendant Shankar who died during the pendency of this appeal. He said, he took possession of the shop. He said, in Diwali of 1977, he inducted the original respondent Shankar as lessee in the shop where he started his restaurant 2 SA 1/1990 business. He said, it was yearly lease at rent of Rs.480/- per year. He said that in Diwali of 1978 he asked the original respondent Shankar to vacate the shop but in vain. He said, the original respondent Shankar did not pay rent to him from Diwali, 1977 and so on 7th July, 1980, the suit was filed for recovery of possession and for recovery of rent for the period between Diwali 1977 to date of filing of the suit, and future mesne profit. 2. The original respondent Shankar contested the suit saying that the sale deed of 14/12/1972 executed by him in favour of the appellants was never intended to be acted upon. He said that the sale deed was executed for and by way of security of loan which he had obtained. He further said that even though the sale deed was executed, the appellant was not put in possession on that day or prior thereto. He thereby indicated that it was he who was in possession since prior to the sale deed of 1972 and that the case of appellant that he was in possession of the suit shop from December, 1972 till December, 1977 was false. He further denied that there was no transaction between him and the appellant of lease etc.. He said that he was never a tenant of the appellant. He mentioned that even during 1972 the market value of the suit shop was more than Rs. 25,000/- but since the transaction was not to be acted upon, consideration was shown as Rs.5,000/-. He further added that the appellant’s father was a money lender and at his instance, he had executed the nominal sale deed in favour of the appellant as security to the loan he had obtained from the appellant’s father. 3. The learned judge of the trial Court in view of these pleadings framed issues and held that the transaction of December, 1972 was 3 SA 1/1990 a out and out sale and that the appellant was put in possession of the shop in 1972. He further held that the original respondent Shankar could not prove that the transaction was sham and was not intended to be acted upon. The suit thus was decreed. 4. The learned judge in the first appellate Court however, held on facts that the transaction of 1972 was not an out right sale but was a mortgage. He further held that assuming the appellant was owner of the suit property since he has approached the Civil Court for possession from a lessee and since he has admitted that this was case of yearly rent, he would not succeed in getting the decree for possession because he admittedly did not give notice under section 106 of the Transfer of Property Act. When the second appeal was admitted in this Court, following substantial question was noticed. “Whether in view of the contents of the partition deed Exhibit 116 read with contents of sale deed of 1976 Exhibit 5, the finding of the learned judge of the appellate Court that the transaction was not a out right sale, is correct ?” 5. The learned judge of the first appellate Court after examining the evidence, held firstly that the appellant could not prove that he was in possession of suit shop since the date of sale deed. He held that the original respondent Shankar continued in possession even after the sale deed was executed. He rejected the evidence of the appellant that he was in possession of the suit shop since Diwali of 1972 till Diwali of 1977. He then taken into account number of other circumstances to arrive at a conclusion that the deed of 1972 was never intended to be acted upon. He pointed out that inspite of apparent sale of the suit shop in favour of appellant in 1972, he never made any attempt to get this property recorded in his name in the record of Gram panchayat. He thereafter pointed out that until the 4 SA 1/1990 appellant’s father was alive in 1977, the appellant had no occasion to claim ownership of the suit shop. The third and probably most important circumstance pointed out by the learned judge was the admitted fact that the appellant and his brother were engaged in a suit since 1979 in respect of partition of joint family property. He further pointed out that the appellant admitted that the said suit was compromised and in the deed of compromise in which the appellant and his brother Shivdas effected partition of joint family property, the suit property was not mentioned. The learned judge of the first appellate Court also mentioned in his judgment that this is certainly anomalous because the appellant admitted that though the suit shop was purchased in his name, actual sale transaction was between his father on one side and the original respondent Shankar on the other. In these circumstances, learned judge of the first appellate Court believed the deposition of the original respondent Shankar when he said that he was indebted to the appellant’s father to the tune of Rs.3,200/- and when he approached him again for further loan, he insisted that nominal sale deed should be executed in favour of his son the appellant as security. 6. The learned counsel for the appellant asserted that the reasons mentioned above and recorded by the learned judge of the first appellate Court were irrelevant for coming to the conclusion. He asserted that since the original respondent Shankar came with a case that this was a transaction of mortgage by conditional sale, he ought to have proved his case within the parameters of section 58(c) of the Transfer of Property Act, 1882. This submission is devoid of merits because admittedly the contents of the sale deed nowhere indicate 5 SA 1/1990 that this was deed of mortgage by the conditional sale. It was apparently a sale deed transferring the property permanently to the purchaser. All the attributes of the sale deed are present in the document. Despite of this, original respondent Shankar was entitled to prove through parol evidence that the intention of the parties at the time of the transfer, were different and as said above, the evidence was such that he could prove his case. In other words, he intended to say that the mortgage by conditional sale, was a oral agreement between the parties and since it was not written down in a document, there was no question of his proving his case within parameters of Section 58(c) with proviso. 7. The learned counsel for the appellant, despite of this, placed reliance on three judgments of Supreme Court, I would discuss the ratio of these judgments one by one. (I) Umabai and another Vs. Nilkanth Dhondiba Chavan (dead) by L. Rs. and another reported in 2005 (4) Mh.L.J. 306. The facts of the reported case are not at all matching to the facts of the present case. (II) Vimalchand Ghevarchand Jain and others Vs. Ramakant Eknath Jadoo reported in (2009) 5 Supreme Court Cases 713. The facts of the reported case are more or less similar to this case. It was a suit for recovery of possession filed by a purchaser of the property and the defendant took up a stand that the transaction of sale was never intended to be acted upon. The Courts below accepted the case of the defendant but the Supreme Court held in this judgment that the evidence of the defendant was not sufficient to hold that the transaction was sham and never intended to be acted upon. Para 31 6 SA 1/1990 of this judgment according to the appellant’s counsel is particularly important. It reads as under. Para 31. Indisputably when the true character of a document is questioned, extrinsic evidence by way of oral evidence is admissible. We would, therefore, proceed on the premise that it was open to the respondent to adduce oral evidence in regard to the nature of the document. But, in our opinion, he did not discharge the burden of proof in respect thereof which was on him. The document in question was not only a registered one but also the title deeds in respect of the properties have also been handed over, Symbolic possession if not actual physical possession, thus, must be held to have been handed over. It was acted upon. The appellants started paying rent in respect of the said property. No objection thereto has been raised by the respondent.” It is clear that the Supreme Court pointed out that the evidence of the defendant in that case was not sufficient to rebut the presumption that had arisen from the contents of the document. The facts of this case are quite different and are discussed above and I am not inclined to disturb the finding recorded on facts by the learned judge of first appellate Court. (III) The learned judge then placed reliance on the judgment in the case Raj Kishore )Dead) By L.Rs. Versus Prem Singh and others reported in (2011) 1 Supreme Court Cases 657. In the reported case, the facts were entirely different. It was a case where a transaction of the sale was followed by agreement for re transferring of the property. The Supreme Court held that this was not case of mortgage by conditional sale. 8. In view of this, the appeal should fail. ORDER The appeal stands dismissed. [A.V. NIRGUDE,J.] ts k/2011/Sept28/sa1.90/ok