1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.456 of 1989 Bapu Govind Walekar age major, occup. Agril. Resident of Wakadi, Tq. Paranda. ....appellant/plaintiff versus 1. Dattu Changdeo Ragade, age 62 years, occup. Agril. Resident of Wakadi, Taluka Paranda. 2. Bhaurao Changdeo Ragade, age major, occupation agril. r/of Wakadi, Taluka Paranda. 3. Tanaji Dattu Ragade, age major, occup. Agril. Resident of Wakadi, Taluka Paranda. ..... Respondents/ori.Defendants ----------- Shri C.G. Solshe, Advocate, for the appellant. 2 CORAM: P.R. Borkar, J. DATE: 12th June 2009. ORAL JUDGMENT. 1. This second appeal is filed by original Plaintiff being aggrieved by dismissal of Regular Civil Suit No.123 of 1981 filed by him for a declaration that the sale deed dated 18.7.1980 for Rs.2000/= in respect of suit land executed by Respondent No. 3 Tanaji in favour of Respondent No.1 Dattu (original defendant No.1) was null and void. The said suit is dismissed by learned Civil Judge, Junior Division, Paranda, on 9.6.1982, which decree and judgment is further confirmed in Regular Civil Appeal No.139 of 1982 decided by II Addl.District Judge, Osmanabad, by judgment dated 27.4.1989. Present Respondent No. 3 Tanaji was original Plaintiff No. 1 and present appellant Bapu was Plaintiff No.2. It is relevant and necessary to know the actual pleadings of the plaintiffs. Original Plaintiff Tanaji was transposed as Defendant No.3 and the suit was continued by present appellant Bapu. 3 2. As per the plaint, block No. 316 admeasuring 4 hectare 11 gunthas situated at village Wakadi, Taluka Paranda, is the subject matter of the suit. It is stated that Respondent No.Tanaji was residing separately from Respondent No.1 Dattu who was his father. Respondent Nos.1 and 2 were brothers. The suit property was standing in the name of Respondent No.2 Bhaurao and he sold it to Respondent No.3 Tanaji by a registered sale deed dated 18.5.1980 for Rs.6,000/=. However, Respondent No.1 Dattu was not allowing his son Tanaji-Respondent No.3 to cultivate the land and, therefore, Tanaji put on the suit land on sale. He agreed to sell it to present appellant for Rs.8,000/= and entered into an agreement on 17.7.1980. Rs. 6,000/= were paid at the time of agreement and remaining amount of Rs.2,000/= was to be paid at the time of sale deed. Possession was handed over to the appellant. Subsequently, Respondent No.1 learnt about the agreement for sale and then he misled respondent No. 3 Tanaji and took him to the office of Sub Registrar and obtained sale deed for Rs.2,000/= without actual payment of consideration on 18.7.1980 and obtained 4 signature of Respondent No.3-Tanaji on the same. Relying upon Respondent No.1 and other persons present, Respondent No. 3 signed on it. Subsequently, the appellant asked Respondent No. 3 to execute sale deed but since Respondent No.3 was avoiding, appellant filed R.C.S No. 136 of 1980 for specific performance of contract. The said suit was filed on 20.11.1980 and on 21.11.1980, realising his mistake, Respondent No. 3 appeared and admitted the suit. Accordingly, on same day consent decree was passed. Subsequently, on 2.1.1981 Tanaji executed sale deed. Thereafter, suit was filed for declaration that the sale deed executed by Respondent No. 3 in favour of Respondent No. 1 is null and void as the same was obtained under duress and without consideration. 3. Respondent Nos. 1 and 2 filed joint written statement at Exh.15 and denied that the sale deed in favour of Respondent No. 1 was obtained by coercion or it was without consideration. It is contended that Respondent No.3 was not residing separately from Respondent No.1. They were members of the joint family. When the sale deed was obtained by Respondent No. 1 in the name of 5 Respondent No.2, he (Respondent No.2) was minor. It was purchased by the father who paid the purchase money. It is denied that Respondent No. 3 had entered into an agreement for sale of the land. It is stated that Tanaji was addicted to liquor or he was vagabond. In order to improve Tanaji, land was purchased in his name but since he wanted to sell the said land, notice was issued in daily “Vishwa Samachar” on 18.11.1980 informing that nobody should purchase land from Respondent No.3. 4. Respondent No.3 Dattu appeared and filed his Written Statement at Exh.29, stating that it was a false suit. His signature was obtained by present appellant on the plaint by fraud. He stated that all the contents of the plaint are false. Sale deed in the name of Respondent No. 3 by Respondent No.1 was nominal. It was purchase by Respondent No.1. It was his self acquired property. Respondent No. 3 did not agree to sell the land to the plaintiff. He was defrauded and his signature was obtained and decree in RCS No.136 of 1980 was also obtained by fraud. Respondent No. 3 was addicted to liquor and gambling. Plaintiff-appellant was responsible for said 6 vices and he wanted to take advantage of such vices. 5. The first appellate court held that the plaintiff-appellant failed to prove that the sale deed by Respondent No. 3 in favour of Respondent No. 1 was obtained by fraud or without consideration. As a result, first appellate court allowed the appeal and set aside the judgment of the trial court which had decreed the suit in favour of the plaintiff. 6. This appeal is admitted on grounds 4 and 5 by order dated 7.12.1989, but in view of narration of pleadings earlier and relief claimed, the substantial question of law that arises for consideration is, whether the appellant-plaintiff proved that the sale deed dated 18.7.1980 was without consideration, or was obtained by fraud or coercion. I have heard Advocate Shri Solshe for the appellant on this point. 7. The sale deed dated 18.7.1989 which is executed by Respondent No. 3 in favour of Respondent No. 1 is produced on record. It is 7 a registered sale deed in which consideration of Rs.2,000/= was mentioned.The suit property was the subject matter of sale. 8. The evidence led by Plaintiff Bapu consist of his deposition at Exh.30. He spoke about his transactions with Defendant No.3. He did not state that he was present when the sale deed dated 18.7.1980 was executed by Respondent No. 3 in favour of Respondent No.1. It was not anybody’s case that Plaintiff Bapu was present at the time of execution of sale deed dated 18.7.1980. Plaintiff did not examine any witness to prove that the said sale deed was without consideration, or was obtained by fraud or misrepresentation or coercion from Respondent No.3. No attesting witness of said sale deed is examined. On the other hand, Respondent No.1-Dattu has examined himself at Exh.33 and Respondent No. 3 Tanaji is examined at Exh.38. There was absolutely nothing in their cross examination to show that Respondent No. 3 had not executed sale deed in favour of Respondent No. 1 Dattu, with free consent and that the consideration was not paid. No question whatsoever regarding this was asked to Dattu. So original case that the sale deed dated 18.7.1980 was without 8 consideration and was obtained by fraud or misrepresentation by Respondent No.3, is not at all proved, as no evidence is led on this point. 8. In the result, this second appeal cannot succeed as there is no evidence to show that the sale deed in question was not executed with free will and was without consideration. In this view of the matter, it is not necessary to enter into other issues. The Second Appeal, therefore, stands dismissed. Parties to bear their own costs. (P.R.BORKAR, J.) pnd/oo sa456.89