1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 385 OF 2009 Sopan s/o Vaijoba Bhande .. APPELLANT VERSUS Vitthal s/o gunda Gojame (deceased thorugh LRs) .. RESPONDENTS WITH SECOND APPEAL NO. 386 OF 2009 Sopan s/o Vaijoba Bhande .. APPELLANT VERSUS Vitthal s/o Gunda Gojame ( deceased through LRs) .. RESPONDENTS Mr. Arun Dalal, Advocate holding for Mr. V.D. Salunke, Advocate for the appellant. Mr. S.S. Deo, Advocate holding for Mr. V.D. Gunale, Advocate for respondent no. 1/3. ===== 2 CORAM : R. M. BORDE, J. DATE : 6 th January, 2010. PER COURT : 1 These are the appeals by original defendant raising exception to the judgment and decree passed in Regular Civil Appeal no. 132/2007 and Regular Civil Appeal no. 108/2008 by the District Judge – 1, Latur on 4-2-2009. 2 Respondent / original plaintiff instituted a suit claiming declaration of ownership and perpetual injunction in respect of agricultural property. Plaintiff during continuance of litigation sought leave to amend the plaint and also requested for execution of reconveyance deed by defendant on acceptance of the amount alleged to have been paid by him. Contention of the plaintiff is that he is owner of land survey no. 16/A (Gat no. 30) admeasuring 4 acres and 50 R situate at village Nandgaon, Tq. Ahmedpur, Dist. Latur. Plaintiff claims to have secured loan to the extent of Rs.4,000/- from the defendant for performing marriage of his daughter and by way of security for the loan advanced, a nominal sale-deed was got executed by defendant on 4-5-1977. It is his contention that it was agreed between the parties that the possession of the property shall remain with the plaintiff. 3 According to the plaintiff, he is and was ready to pay the loan amount alongwith interest at the rate of 12% per annum, however, defendant was not ready to receive the amount. His intention was to grab the suit land and as such, he started making obstruction to the possession of plaintiff. Plaintiff, as such, was constrained to approach the civil court seeking relief as stated above. 3 Defendant appeared and resisted the suit by filing written statement. Defendant denied the contention as regards the nature of transaction being nominal one. Defendant has denied the contention raised by plaintiff that the transaction in fact was in respect of advancement of loan and the execution of sale-deed was by way of security for the loan advanced. Defendant as such prayed for dismissal of the suit. 4 Trial court after receiving evidence led by the parties reached conclusion that the plaintiff has established his possession over the suit property, however, he has not established his case for granting declaration in respect of ownership. Trial court thus while decreeing the suit partly has clamped restrain order against the defendant retraining him from interfering the possession of the plaintiff over the suit property. There were two appeal 4 presented by plaintiff and defendant respectively raising exception to the judgment and decree passed by the trial court First appellate court while dealing with the appeals has dismissed the appeal presented by the defendant, however, has allowed the appeal presented by plaintiff and granted declaration in favour of the plaintiff holding that the transaction is nominal one. 5 I have perused the judgments recorded by both the courts below. I am not inclined to admit the appeals. Both the courts have recorded concurrent findings to the effect that the plaintiff has established his possession over the suit property and in my view this is the most important aspect which supports the claim of the plaintiff as regards the nature of transaction being nominal one. Inspite of execution of the instrument of sale the possession of the property remained with the plaintiff. Another aspect of the matter i.e. referred to by the first appellate court is that the father of the plaintiff was in possession of the disputed property as a tenant and necessary declaration to that effect has been granted by the competent tenancy authorities. It is also recorded by the first appellate court that there is a certificate issued under section 38(5) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 declaring the father of the plaintiff as protected 5 tenant. The tenancy authority also determined the price of the suit land to be Rs.3,000/- which appears to have been deposited by the plaintiff Vitthal and a such, necessary sale certificate under section 38(6) of the Act appears to have been issued in his favour. Admittedly, the alleged transaction which is subject matter of dispute in the instant litigation is entered into without securing appropriate permission from the tenancy authority. The transaction on the face of it is violative of tenancy law and as such cannot be taken note of. These are the circumstances which support the claim of the plaintiff that the transaction in question arrived at between the plaintiff and defendant is nominal one. In view of these relevant circumstances, I am of the opinion that the instant appeals do not call for any interference under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. Both the appeals therefore stand dismissed summarily. 6 In view of dismissal of appeals, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa385.09.odt