1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 256/2008 (Shankar Pundlik Ilame vs. Tulshiram Pundlik Ilame) -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Shri S.S.Doifode, Adv. for appellant Shri S.R.Deshpande, Adv. for Respondent CORAM : C.L.PANGARKAR J DATED : 20 th OCTOBER, 2008. Heard counsel for the parties. 2. This appeal has been preferred by the original defendant. The respondent herein had instituted a suit for declaration, injunction and possession as. he is the owner of the suit property. 3. It is the case of the plaintiff/respondent that he had purchased the suit property from defendant from his real brother in the year 1982 and he was put in possession of the suit property. It is his further contention that since 1982 until year 2000 he was in actual cultivating possession and he was dispossessed by the defendant/appellant in the year 2000. Hence, he instituted suit for declaration, injunction and possession. 4. The defendant resisted the suit and mainly contended that the transaction in suit was one of loan as he had obtained loan of Rs.4,000/-. According to him, the loan was repaid by him after two years. He contended that he never parted with 2 the possession. Further he contended that the amount was actually given to him by his sisters and they directed the defendant to execute the nominal sale deed in favour of the plaintiff, which was to become ineffective upon repayment of the loan. 4. The learned judge of the trial Court found that the defendant was the owner. The title did not pass in favour of the plaintiff and the plaintiff was not put in possession of the suit property. Holding so, he dismissed the suit. 5. The learned Judge of the first appellate Court, however, found that the defendant has failed to make out a case that it was a case of loan transaction and that he repaid the loan and that he was in possession of the suit property. The learned Appellate Court, therefore, decreed the suit. 6. Shri Doifode, learned counsel for the appellant, submitted that the plaintiff had in fact executed a deed of relinquishment in favour of the defendant and had given up the rights in the suit property. He submits that, therefore, it is apparent that the defendant was in possession of the suit property and the transaction in suit was one of loan. He also submitted that 7/12 extract right from 1981 to 2001 except for the years 1987 to 1992 are all in the name of the defendant and that suggests that defendant never parted with the possession. He submits that, therefore, there was no reason for the appellate Court to have interfered with the findings of the trial Court. 7. After having heard the learned counsel for the appellant 3 and respondent, it appears to me that the learned Judge of the first appellate Court did take into consideration the evidence that was tendered before it. He considered the fact that although defendant had contended that his sisters had advanced the loan, the sisters were not examined in the Court to prove that they had advanced the loan and in consideration thereof, the sale deed was executed. The learned Judge was right in drawing the adverse inference against the appellant in that regard. 8. Learned counsel for the appellant then contended that the First Appellant Court has not taken into consideration the effect of the relinquishment deed. This submission is not correct. The relinquishment deed has been considered by the first Appellate Court in the right perspective. It is an unregistered document and the plaintiff has disputed his signature thereon. Further, if the recitals of the relinquishment deed are seen, it is apparent that it does not speak of possession having been redelivered. There is a clear recital in the sale deed itself of the possession having been delivered to the plaintiff and if that is so, then it was necessary for the defendant to have shown that the possession was not in fact delivered. 9. Learned counsel for the appellant submitted that 7/12 extract would go to show that the possession was that of the defendant right from 1981-82 until 2000. The record shows that from 1987 to 1992 the possession was that of the plaintiff. So it is not that consistently the crop statement is in the name of defendant alone. There is no explanation from the defendant as 4 to why the crops statement for these years stand in the name of the plaintiff. Further it is stated by Shri Deshpande, learned counsel for the respondent that the plaintiff has challenged the entires in the crop statement before the appropriate authority. 10. The learned Judge has taken into consideration the fact that although it is the case of the defendant/appellant that he repaid the loan of Rs.4000/- after two years, there is no documentary evidence available with regard to such repayment and further if the repayment was made after two years, there is no explanation as to why in the subsequent years there is a entry of possession of the plaintiff in 7/12 extract. 11. In view of above, I do not see any perversity in the findings recorded by the first appellate Court. There is, therefore, no substance in the appeal. It is dismissed in limine. JUDGE Rvjalit