SA/9220/2008 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 92 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAMJIBHAI KANABHAI PATEL - Appellant(s) Versus HEIRS & LEGAL REPRESENTATIVE OF DECEASED JIVRAJBHAI & 6 - Defendant(s) ========================================================= Appearance : MR GR NANAVATI with MR SK PATEL for Appellant(s) : 1, MR PC KAVINA with MR DC SEJPAL for Defendant(s) : 1, None for Defendant(s) : 2 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 20/11/2008 ORAL JUDGMENT 1. The appellant/ori. defendant has filed this Second Appeal under Section 100 of the Civil SA/9220/2008 2/18 JUDGMENT Procedure Code challenging the order passed by the learned Additional District Judge and Presiding Officer (Fast Track Court No.5) at Rajkot in Regular Civil Appeal No.64 of 2005 on 31.1.2008 allowing the Appeal and reversing the order passed by the learned Jt. Civil Judge (S.D.) Rajkot in Special Civil Suit No.22 and 23 of 1978 (consolidated Suits). 2. The present respondent had filed the Suit before the learned Civil Judge (S.D.) Rajkot for permanent injunction and possession of the suit property, namely, agricultural land i.e. 4 acre 8 gunthas of Revenue Survey No.145/1 situated in the sim of Village : Maliasan, Taluka : Rajkot, Dist. Rajkot. It is the case of the plaintiff in the suit that the plaintiff has purchased the aforesaid land from the appellant/ori. defendant by registered Sale Deed dated 22.3.1972 by paying consideration of Rs.8,500/- and on the SA/9220/2008 3/18 JUDGMENT same day the plaintiffs had entered into a labour contract with the defendant for proper cultivation of the land on crop share basis. Similarly Dahyabhai, a brother of the deceased Jivrajbhai Bhanabhai Patel had also purchased 4 acre and 9 gunthas land on the same day from the same Revenue Survey No.145/1 for a consideration of Rs.8,500/- by registered Sale Deed and also entered into a labour contract with the appellant. The said Dahyabhai Bhanabhai Patel had also filed Special Civil Suit No.23 of 1978 in the Civil Court (S.D.) Rajkot. Both the aforesaid suits were consolidated and dismissed by a common judgment dated 23.4.1984. No appeal was filed by Dahyabhai against the dismissal of his Suit No.23 of 1978. 3. The present respondent/defendant resisted the aforesaid suit by filing written statement at Ex.12 denying the case of the plaintiff that there is a sale transaction SA/9220/2008 4/18 JUDGMENT between the parties. That it is a case of the appellant that there was a loan/mortgage transaction and the alleged documents were executed by the plaintiff for safety and security of an amount advanced by plaintiff to the defendant. It is also the case of the appellant that after considering the oral as well as documentary evidence on record of the case, the trial Court by its judgment and decree dated 23.4.1984 dismissed both the suits holding that the transaction is not a sale transaction as claimed by the plaintiff. The trial Court on the basis of judgments of various High Courts held that the intention of the parties while entering into particular transaction can be gathered not only from the plain reading of the document itself or from its face value but the surrounding circumstances are also to be considered to decide the real, intended nature of the document. The trial Court further held that, only relying on the recitals occurring in SA/9220/2008 5/18 JUDGMENT Ex.76 and 77 it cannot be straightway concluded that the transaction is a sale and not any other thing. Face value of the documents is not the only sole test to decide the real nature of the document. That in light of the judgments of the High Courts and also considering the sale deed Ex.76 and 77 and labour contracts Ex.90, 96, Ex.78 and 79 and other oral as well as documentary evidence on record of the case, the trial Court held that the transaction between the parties is not the sale transaction, it may be a loan transaction. The trial Court further held that the defendant in the suit had succeeded in rebutting the presumption of the sale transaction on the basis of surrounding circumstances and oral evidence in support of the case of the defendant. The trial Court further held that the respondent plaintiffs have failed to prove the so called sale transaction. That the trial Court further held that the plaintiff has also SA/9220/2008 6/18 JUDGMENT failed to prove that they are in possession of the suit filed and the appellant defendant was only in custody of the suit land as he was tilling the land on labour contract. The trial Court further held that the document Ex.90, 96, 78, 79 were leased as it was for the period of one year and land was given on crop share basis and, therefore, the said documents, namely, Ex.78, 79, 90 and 96 were void contracts, in view of the provisions of Sub Section (1) and (2) of Section 5 of Saurashtra Prohibition of Lease of Agricultural Land Act, 1953. The trial Court found that the relief of taking account was relinquished by the plaintiff subsequently in the suit. 4. Being aggrieved and dissatisfied by the judgment and decree of the trial Court, the heirs and legal representatives of deceased Jivrajbhai Bhanabhai Patel filed the appeal in this Court being First Appeal No.10 of SA/9220/2008 7/18 JUDGMENT 1985 and subsequently by virtue of the amendment brought in the Act the said Appeal was transferred to the District Judge for disposal in accordance with law in view of the provisions of the Gujarat Civil Courts Act, 2005. After considering the record and proceedings of the case, the learned Additional District Judge, Fast Track Court No.5, Rajkot allowed the appeal and set aside the judgment and decree dated 23.4.1984 passed in Special Civil Suit No.22 of 1978 by the Joint Civil Judge (S.D.) Rajkot and thereby decreed the suit in favour of the plaintiffs and directed the appellant to hand over the possession of the disputed land within 60 days from the date of receipt of record and proceedings by the trial Court. 5. The lower Appellate Court after considering Sections 91 and 92 of the Indian Evidence Act gave his finding that as per Sections 91 and 92 of the Indian Evidence Act, once document SA/9220/2008 8/18 JUDGMENT is written i.e. evidence of express are before the Court, the Court cannot go upon oral evidence, though there are proviso mentioned in the Indian Evidence Act. 6. On the basis of judgment rendered by the Appellate Court, following substantial questions of law were proposed to be framed by the appellant; (1) Whether the Lower Appellate Court has substantially erred in deciding the transactions Ex.76 and 77 as out and out sale of the disputed property and not mortgage deed in view of and relying upon Sections 91 and 92 of Indian Evidence Act and under Section 58(C) of the Transfer of Property Act ? (2) Whether the Lower Appellate Court has rightly come to the conclusion and not committed substantial error in law in deciding transaction in question as sale transaction between the parties and not loan/mortgage transactions considering the surrounding circumstances and oral evidence on record ? SA/9220/2008 9/18 JUDGMENT (3) Whether the Court without consider the oral evidence and the surrounding circumstances and the conduct of the parties, interpret the document only by plain reading of the same, when the intention and nature of document is seriously disputed by the party to the document? (4) Whether the embargo of Section 91 and 92 of Indian Evidence Act will apply to the party, who seeks to establish that the transaction itself is different from what is sought to be interpreted by the opposite party, who seeks to take benefit of the document? (5) Whether the party, who is in possession of best oral evidence, can be prevented from proving that the document was not intended as sale deed but it was a loan/mortgage document? 7. Heard Mr.G.R.Nanavati with Mr. S.K.Patel, learned advocate appearing for the appellant and Mr. P.C.Kavina, with Mr.D.C.Sejpal, learned advocate appearing for the respondent. The main thrust of the argument of Mr.Nanavati is that the judgment and SA/9220/2008 10/18 JUDGMENT decree passed by the lower Appellate Court is contrary to law, facts of the case and liable to be quashed and set aside. He has further submitted that the lower Appellate Court has not properly considered the real scope of Sections 91 and 92 of the Indian Evidence Act as well as Section 58(C) of the Transfer of Property Act for deciding the intention of the parties at the time of executing the alleged Sale Deed as per Ex.76 and 77. He has further submitted that the Lower Appellate Court should have considered that the plaintiff was never in possession of the suit land. The defendant was residing in different village and the distance between two villages are more than 14 Km. He has further submitted that the trial Court has rightly considered the surrounding circumstances by appreciating the oral as well as documentary evidence on record of the case for deciding the intention of the parties to execute the documents as per Ex.76 SA/9220/2008 11/18 JUDGMENT and 77 and Ex.78, 79, 90 and 96 and come to the conclusion that the transaction between the parties as per Ex.76 and 77 are not out and out sale but it may be a loan/mortgage security transaction. He has further submitted that the lower Appellate Court has not properly considered the fact that the appellant has discharged its burden to prove that the said transaction was not out and out sale and it was never intended to execute the sale deed. It was never intention of the appellant to execute the sale deed in respect of the land in question in favour of the plaintiff. The only intention was to offer property by way of security of the amount taken on loan by the appellant. He has further submitted that the lower Appellate Court has wrongly invoked Section 58(C) of the Transfer of Property Act and arrived at the conclusion that there is transaction of mortgage by the conditional sale in that case, condition must be expressed by the SA/9220/2008 12/18 JUDGMENT parties. 8. In support of his submission Mr.Nanavati has relied on the decision of the Hon'ble Supreme Court in the case of R. Jankiraman Vs. State Represented by Inspector of Police, reported in (2006) 1 SCC 697, wherein the correct interpretation of Sections 91 and 92 is made and Court has cull out the principles relating to Sections 92 of the Evidence Act. It is held therein that, (i) Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91. (ii) The rule contained in Section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contracting or varying the terms of the instrument. On the other hand, SA/9220/2008 13/18 JUDGMENT Section 91 may apply to strangers also. (iii) The bar under Section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different. 9. Based on this observation Mr.Nanavati has strongly urged that here the defendant has specifically contended that the alleged sale deed was not intended to be executed for the purpose of sale of property. It was merely SA/9220/2008 14/18 JUDGMENT offered by way of security for taking loan and hence in such a situation bar under Section 92 would not apply. He has, therefore, submitted that the lower Appellate Court has gravely erred in arriving at the conclusion that the transaction in question was sale transaction and the present appellant/ori. defendant is liable to hand over the possession to the respondent/ori. plaintiff. 10. Mr. P.C.Kavina on the other hand has strongly relied on the judgment and order passed by the lower Appellate Court. He has submitted that all the aspects which were taken into consideration by the trial Court were properly replied by the lower Appellate Judge and after considering the relevant statutory provisions and the decided case law on subject had come to the right conclusion. He has submitted that the document in question is a sale transaction. The present SA/9220/2008 15/18 JUDGMENT appellant has entered into witness box and he has not disputed the transaction itself. A different colour is given to the transaction in the submissions made before the Court and it cannot be said that it is a sham or non- genuine transaction. He has further submitted that the issues which were discussed by the trial Court were threadbare considered by the appellate Court and has given his own finding on those issues. He has further submitted that none of the questions framed by the appellant for consideration or determination of this Court can be said to be a question of law, much less substantial question of law and the Appeal deserves to be dismissed at the threshold. 11. Having heard learned counsels appearing for the respective parties and having gone through the oral judgment and order passed by the Court below and the documents, which are SA/9220/2008 16/18 JUDGMENT produced before the Court in a separate compilation and having considered the relevant provisions of Section 91 and 92 of the Indian Evidence Act as well as Section 58(C) of the Transfer of Property Act, the Court comes to the conclusion that the transaction in question is a sale transaction. The property was sold by the appellant to the respondent. It was for consideration, which was given, and no dispute was raised with regard to the adequacy of the consideration. Even if dispute is said to be raised, no evidence was led before the trial Court to the effect that it was not for adequate consideration. The present appellant in his deposition has admitted that he has entered into the transaction. Only the question which was raised by him in deposition is that it was not intended for sale. However, this plea is not available to the defendant as Section 58(C) is very clear on this issue. The SA/9220/2008 17/18 JUDGMENT document is totally silent and no condition is made in the document. Under Section 58(C) it is not available for the defendant to raise this condition before the Court that the transaction was mortgaged with conditional sale. The judgment which is relied by Mr.Nanavati, as a matter of fact, supports the case of the plaintiff rather than the case of the defendant. As in that case the Court has clearly stated that it was not open for the parties to establish that the transaction itself is different from what it was purported to be. 12. Considering the entire facts of the case and the legal position on this issue and having properly appreciated documents, the Court is of the view that the learned Appellate Court has rightly come to the conclusion and that the judgment and order of the lower Appellate is based on sound reasoning and proper appreciation of SA/9220/2008 18/18 JUDGMENT evidence. It does not require any interference by this Court and no question of law, much less substantial question of law arises. The appeal is, therefore, dismissed without any order as to costs. 13. Since the Appeal is dismissed, the Civil Application does not survive and hence it is accordingly rejected. (K. A. PUJ, J.) kks