1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 635 OF 2006 Sundarlal s/o Ambadas Yadav & others .. APPELLANTS VERSUS Anant Ganpatrao Yadav & another .. RESPONDENTS Shri Prasanna Chavan, Advocate for the appellants. Shri Vivek Bhavthankar, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 28 th July, 2009 PER COURT : 1 This is an appeal by original plaintiffs raising challenge to the judgment and decree passed by the learned 2 nd Adhoc Additional District Judge, Osmanabad on 13-12-2002 in Regular Civil Appeal no. 200/1995 whereby the first appellate court while allowing the the appeal has reversed the judgment and decree passed by the trial court. 2 Appellants / original plaintiffs instituted suit bearing Regular Civil Suit no. 63/89 claiming declaration that the sale transaction effected by him in favour of defendant shall be declared as transaction in respect of 2 advancement of loan and does not bind the plaintiffs. Plaintiffs have also claimed recovery of possession of the property. According to the plaintiff, he has approached the defendant and requested him to advance loan of Rs.21,000/- for paying dues of Vividh Karyakari Seva Sahakari Society Ltd. Takviki land Development Bank. Defendant no. 1 agreed to pay Rs.21,000/- however, on condition that the plaintiffs shall execute registered sale-deed in respect of the disputed land showing consideration amount as Rs.40,000/-. Plaintiffs agreed to the condition and executed sale-deed after borrowing amount of Rs.21,000/-. Plaintiff has also further contended that the property was mortgaged with the society and as such in view of section 47 and 48 of the Maharashtra Co-operative Societies Act, the transaction concluded between plaintiff and defendant is void. 3 Defendant appeared and resisted the suit by presenting written statement. Defendant denied the adverse contentions raised by the plaintiffs in respect of nature of transaction and contended that the transaction entered into by him with the plaintiff is an out and out sale and not a transaction relating to mortgage. So far as the bar contemplated by section 47 and 48 of the Maharashtra Co-operative Societies Act is concerned, it is contended that in the absence of society such a plea 3 cannot be permitted to be raised and moreover, it is for the society to raise the plea and seek relief accordingly. Said plea in respect of bar as provided under section 47 and 48 of the Maharashtra Co-operative Societies Act is not available for plaintiff. 4 Trial court after considering the rival contentions has recorded finding that the plaintiffs have failed to prove that the sale transaction is effected for advancement of amount. Trial court has recorded finding that the transaction in question is an out and out sale and not money lending transaction as contended by the plaintiffs. However, considering the provisions of section 47 and 48 of the Act, trial court recorded finding that the sale is void and as such decreed the suit presented by the plaintiffs. Defendants preferred appeal being Regular Civil Appeal no. 200/1995 which came to be heard and disposed of by the 2 nd Adhoc Additional District Judge, Osmanabad who was pleased to allow the same after giving an opportunity of hearing to both the parties. The first appellate court has also recorded finding that the transaction in question is not a money lending transaction but the same is a sale transaction. So far as bar contained in section 47 and 48 of the Maharashtra Co-operative Societies Act is concerned, it has been recorded by the first appellate court that it will have 4 no bearing with the claim raised by the plaintiffs and such plea is not available. The first appellate court therefore while allowing the appeal has set aside the decree passed by the trial court. 5 I have heard the arguments advanced by Shri Prasanna Chavan, learned counsel for the appellants and Shri Vivek Bhavthankar, learned counsel for respondent no.1. So far as the finding recorded by the courts below in respect of nature of transaction is concerned, it is based on appreciation of evidence placed on record by the parties. Finding of fact recorded by the courts below in respect of nature of transaction between the plaintiffs and defendants need not be upset while dealing with the instant second appeal. Moreover it is required to be taken note of that in view of provisions of section 91 and 92 of the Indian Evidence Act, the terms of the contract which have been reduced into writing are required to be taken into account and no evidence for disproving contents to the terms reduced into writing would be admissible except in the exceptional circumstances enumerated in the said section. In this view of the matter, the terms of the document reduced into writing shall have to be accepted and no oral evidence of any statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the 5 purpose of contradicting, varying, adding to , or subtracting from its terms. So far as bar contained in section 47 and 48 of the Maharashtra Co- operative Societies Act is concerned, defence is not available to the plaintiffs in view of the judgments reported in 2004(4) Mh.L.J. 575 as well as AIR 1997 Supreme Court 3479. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa635.06.odt