1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 492/1989 1 Rachappa Madhavrao Rakshale Age : 55 years, Occu. Agri. 2 Vishwanath s/o Madhavrao Rakshale Age : 30 yeas, Occu. Agri. 3 Kashinath Madhavrao Rakshale, Age : 35 years, Occu. Agri. 4 Pralhad Madhavrao Rakshale, Age : Occu. Agri. ...Appellants Versus Kashinath s/o Gundappa Patne Age : 40 years, Occu. Agriculture, R/o Lohara Tq. Udgir. ...Respondent. ........ Smt. Lata Bade, Advocate for appelants. Shri S.C. Chillarge, Advocate for respondent sole. CORAM : N.D. DESHPANDE, J Date : 19/12/2009 ORAL JUDG MENT:- 1 In the light of the orders passed in C.A. Nos. 12956/2009 and 13100/2008, this second appeal of the year 1989 arising out of Regular civil suit No. 136/1979, a 40 years old dispute is restored for decision on merits. 2 Mr. Sakolkar learned counsel for the respondent did not object for restoration only because the appellant is ready to argue the second appeal finally on merits. With consent of both the parties, second appeal is heard forthwith. Admittedly, both the courts below recorded all findings against the appellants who are the original defendants. The second appeal came to be admitted mainly on the point and grounds that the sale deed dated 1 st September, 1970, is out and out sale and not a security for loan. In the light of agreement of re conveyance of the same day in favour of the defendants in supports of loan transaction as security and whether alleged sale deed was executed by the defendants’ father Mahadu for Rs.1500/- a loan for opening grocery shop. 3. The second appeal arising out of Regular Civil Suit No. 136/1979 filed by respondent / plaintiff for possession of the land and also for rectification of document and recovery of mesne profit from defendants. It was filed in the year 1979. It is a suit for possession on the basis of title under a registered sale deed dated 9 th January 1970 for total consideration of Rs.3,000/-. According to the plaintiff, he became owner of survey no. 69-AA ad-measuring 3 acres from western side. The plaintiff came in possession of the land after sale 3 deed. Cause of action in the suit for possession is dispossession of the plaintiff by the defendants who are sons of the original vendors who forcibly dislodged plaintiff on the said land two years preceding to the filing of the suit. At that time, the plaintiff realised that in the sale deed, survey number is wrongly mentioned as 58-AA which he received in possession and sale deed dated 9 th January 1970 for consideration. The plaintiff also claims future mesne profit @ Rs. 500/- per year. 4 The defendant filed written statement at Ex.13 denying the alleged sale transaction. It is stated that there is no agreement to sell the land to the plaintiff. Their father was in need of money and offered the sale deed as a security for certain money which he required for his grocery business and security was also offer in respect of survey No. 58-E and not for survey no. 69- AA. According to the defendants, the sale deed is sham and bogus and without consideration. So, it is bad in law. It was further stated that boundary mentioned in the sale deed also do not tally with the boundaries of Survey no. 58-E for which there is mutation entry in favour of the plaintiff. It is admitted that the defendants raised objection to the mutation entry and also for 4 rectification of the sale deed. So, the suit is time barred for rectification of the document i.e. sale deed. It is also seen from the judgment of trial court that in fact, the agreement between parties was of money lending and therefore, no title and possession was transferred to the plaintiff either of survey no. 69-AA or Survey no. 58-E. So, the defendants prayed for dismissal of the suit. 5 Perused the judgment of the learned trial Court so also the impugned judgment passed by first appellate Court on all these points which was the real controversy between the parties before the trial Court referring to the issues framed. All findings came to be recorded against the defendants and in favour of the plaintiff. It is seen that there is no averment in the written statement that amount borrowed was repaid or they were ready and willing to repay the amount. The agreement of re conveyance deed was also not acted upon by the defendants by showing readiness and willingness to repay the amount and for specific performance. The defendants still insist on continuation of possession saying that there was no delivery of possession at any point of time in favour of the plaintiff. However, the execution of the document i.e. sale deed dated 9 th January 1970 is admitted by the defendant squarely failed to 5 prove the loan transaction by cogent evidence. 6 Both the courts have discussed oral and documentary evidence on record of both the sides and properly appreciated the evidence which call for no interference. 7 It is also proved on record that original transaction is sale deed and also alleged deed of re conveyance took place between the plaintiff and the father of the defendants and therefore, the defendants who are denying the sale deed and consideration have no direct knowledge about the real transaction and therefore, case put up by them in their written statement denying the sale transaction has been rightly appreciated. In that view of the matter, the second appeal stands dismissed with cost. [N.D. DESHPANDE, J.] tsk/sa492.89