cgé" / PACE NO 0.3.: m THE HIGH COURT OF JUDICATUR§_$T BILASPUR (CHE-ETTISGARH) / s.a,No. VI L15 /2p_o_g Single gench gPmLANT (REM / EgFE mDmT'h NO o 8) z / Khorbahara Smt. Maan Bai Lodhi, 6 Bhan , Aged Ba'i abOut w/o 36 years; R/o village— Marutola Tah. Khairagarh; District- Rajn andgacn (c. G.) VERSI_J§_ RESPONmm : V) Bhangi singh s/o sukhram Singh P/LAINTIFF f /V YadaV; Aged about 52 years. R/o Village- sonesarar; Tah.- ‘ Kharigarh Dist. Rajnandgaon (c.G.) No.2 RESPONDENTs TO 8 K )3 ) Tetku s/o Sanwant Lodhi; Aged about 57 years. }}) Fulu ram s/a Mehtar Ioahi; Aged about 37 years; l DEFEVDANTS a. Aged about 33 years. §}) Samodhi s/o Mehtar Lodhi: l }/5) sushila sai D/o Mentar mdhi; g " Aged about 31 years; x §/5) soniya Bai w/o Mehtar Lodhi; Aged about 57 years. fp'lPerdeshi S/o sanwant Ipdhi; a ‘Aged about 37 years. si § / (a) Sangeetayaai 13/0 Sukhi Ram Iodhi;Aged about 21 years. a; } (c) chandrika Bai n/o sukhi Ram a i’ ‘ Lodhlz Aged‘about 19 years. § ( r’ Sunil KumMS/o sukhi Ran Lodhi: Aged‘ about 1g years. ( r) Kumari sema Bai D/o Sukhi 5 Ram Iadhi. aged about 14 yrs‘ No. 8(k) Mlnor, through natural guardzan mother Smt. Milautm Bai. //2// . x w )/ 8V), (A) ' Ram smt. Lodhi; Milautinaai Aged about w/o 44 sukhia yr /, ‘ ’ ‘ a _ 4 ...i;.. //2// M w/o Suxhi Ram Lodhi All R/o Village- Marutola Tab.— Khairagarhmistt.Rajnanagaon (CG.) j 9) state of M.P. at present state‘ Q/ o£ c.G. through collector; Rajnandgaon (c.G.) szcam APPgAL UNwR SEcrION mg or ‘mg cons OF cxvxg paocmmw ;908. ‘~‘A_Aa_‘:_-‘JJJ i , land Kh.No.239 area 1.16 acres ituated in viiiage Marutola, Tan. Khairagarh, Distn‘ct Rajnandgaon, executed a registered sale deed Ex.P.1, in favour of Bhangi Sing on 21.3.1988. Subsequently. Tetkuram sold the suit land on 07.0 .1990 in favour of one Sukhiram, defendant No.7. Sukhiram in turn cl the suit land to Smt. Maan Bai, defendant No.8 through registered ale deed on 14.01.1991. Bhangl Singh instituted a Civil Suit No. 62-A of 1992 for a declaration that both sale deeds dated 07.03.1990 and 4.01.1991 were votd and did not confer any title to the purchasers nce Tetkuram had no subsisting valid title over the suit land on the ate of sale. Relief for permanent injunction against the defendants No.1 to 8 was also sought. 3. The defendant No.1-Tetkur in his written statement paragraph 5 admitted the execution of the regi ered sale deed on 10.03.1988 but pleaded that the document, though uched as a sale was essentially a mortgage upon a loan of Rs.3,600/ from Bhangi Singh. The learned Civil Judge Class-l. Khairagarh, de judgment dated 30.08.2000 dismissed the suit on the ground tha document Ex P 1 was a mortgage of the surt [and executed by Tetku m in favour of Bhangi Singh who , , was never in possession of the suit l nds n l i a i XI—HC—78 3aW, Wm, mg? k, Wm .§;3:')‘P;.4LL25../.... 1H 200 t1 WW(W) 311w anW W ama‘r‘ ‘WW ammym mam €l%a mam a;WW 1§s1zz09§ i L Appellant-Smt. Maan Bai by S ‘ri R. N. Jha, Advocate. ~ Respondent No.1 -Bhangi S ngh by Shri Rajesh Pandey, Advocate. Respondents No.2 to 8 are ab ent. Respondent Nag/State by Sh ‘Aknil Agrawal, P.L. Heard. 2. Brief facts are that Tetkuram, he owner in possession of the suit XI—HC-78 Wm....oo o....a?\ 200 WWGEW) WWW madam WW§WW mmwm *1‘ amaqm 4. Aggrieved by the said judgment and decree, Bhangi Singh preferred First Appeal No. 35-N2 before the Additional District Judge, Khairagarh. Wde jUdgment nd decree dated 03.08.2004, the teamed Additional District Judge he that the defendants had failed to establish the collateral nature of thet ansaction and the registered sale deed dated 21.031988 was an outri ht sab which conferred valid titie over the suit lands on Bhangi Singh. talso heid that Bhangi Singh was in possession of the suit lands on the date of the suit. On these premises. it reversed the judgment nd decree passed by the tower Court and granted a declaration in favour of Bhangi Singh that the document Ex.P.3, dated 07.03.1990 nd Ex.P.4 dated 14.01.1991 were anted the relief of permanent Maan Bai. 5. The following substantial ques ion of law arises for determination in this Appeal:- ‘Whether a valid title ha been transferred in favour of the plaintiff vide sale deed dated 21.03.1988 (Ex.P.1) I and the said document has proved on record?” n 6. Shri R. N. Jha. leamed cou sel for the appellant has placed reliance on Rai Kumar Rajindra gh v. Himachal Pradesh and others‘, emt. Ganga Bar v. Smt. c habuhalz. Naroiuam elm Singh and others v. Waikhom Leirenj o Singh and others’, chandl Prasad v. Nanklbai‘, Parvinder 8i h v. Renu Gaumm and others“ and Subhra Mukherjee and anothe v. Bharat coking Coal Ltd. and others“ while arguingthatthe bu initiallylies on BhangiSinghto _ 1. AIR 1990 SC 1833 2. AIR 1982 SC 20 3. AIR 1958 Manippr38 4. 1985 M.P.W.N. (415) 5. (2004) 4 SOC; 794 6. (2000) 3 SCC 312 , " sham and not effective and also injunction against defendant No.8- 0".) ‘ 0 r . S 'n r n XI—HC—78 .ooo....11a£:20" WW(W) WWW WWW mamm ,3— prove execution of sale deed by Te Wna‘é’thgaqaaéw inEx Ex.P.1 was a mortgage and not a s the demarcation of the suit land in th above conciusion. Lastly, it was urg was also not mutated over the suit la WW%‘WW §3a§mm tkuram. ln view of the recital “H3 P. 1, it was clear that the document ale deed. Simltarly, non-recital of a sale deed also lent support to the led that the name of Bhangi Singh 1ds. 0n the other hand, Shri respondent No.1 argued in suppo decree placed reliance on Uma phondiha Chavan’, Bhaskar W Agrawal‘and K.slmrathmuu v. s. 7., Having heard rival contentio that there is no merit in this appea deed by Tetkuram in favour of Bh was not disputed by the defend nts‘ The plaintiff had not onty examined himself but had also exa ined attesting witnesses Atmaram P.W.2 and Ghanaram P.W.4 to pr e the factum of an outright sale in his favour. There can be no transaction as sham, bogus and burden was upon the defendants in fact a mortgage and not a sale. There is no explanation why Tetkuram did not enter the witness box to vide Ex.P.‘i executed by him or to ants that the document was in fact i Bhangi Singh. Tetkur’am' was a 7. 2 6S0 “qr s sh Pandey. learned counsel for of the impugned judgment and Bat and another v. Nilkanth Joshi v. Narayan Rambilas anjalingiah Gowder‘. s, i am of the considered opinion The execution of registered sale Singh vide Ex.P.1 on 21.03.1988 HW,W,W o oo..o¢o.o.... having been executed by Tetkur dispute that a person who attacks fictitious must prove the same. He to prove that document Ex.P.1 was rebut the factum of an outright sale support the contention of the defenc ~ a mortgage, for the loantaken frorr a‘tr * R ‘ a l a e n i a a XI-HC—78 3aW, WWI—9:, Wm? . ........ 11"; 200 Wm (13W) 4k— TA} Q70 WWW WW&‘WW WWW mawm —Llr é§a¥f§mm contesting defendant. He was the best person to enter the witness box to show that the document Ex.P.1 in fact a mortgage and was never intended to be acted upon a sale. Due to non-examination of Tetkuram. the case of defendants fall to the ground. 8. It is atso pertinent to note that the sale deed Ex P.1. there is no recitat of a condition of repurchase. In a mortgage, the debt subsists and right to redeem remains with debtor. No reason whatsoever was assigned as to why Tetkuram n er made any effort atter executing the sale deed on 21 .031988 to re the mortgage, if it Was so, tilt he ’ executed the 'sale in favour of S ram on 07.03.1990. There is nothing on record to show that Tet ram ever served a notice upon Bhagiram for this purpose. 9. Learned counsel for the a lant has placed before me three circumstances to contend that the document Ex.P.1 was in fact a mortgage. Firstly, it was conten that the recital in the sate deed Ex.P.1 "as W Ila st s ’(a'a W s” clearly shawed that in fact the document was intended to be a mortgage and not a sale. This argument is unacceptable since t e recital runs contrary to the contention raised by the learned co nsel for the appellant. lt is also pertinent to note that the defendan did not cross-examine Bhangi Singh P.W.1 on this point, and ther fore, merely on the basis of this recital, no inference can be drawn hat the document Ex.P.1 was a mortgage. Secondly, it was urged by the learned counsel for the appellant that the demarcation of th suit land Kh.No.239 area 1.16 acres has not been mentioned in the ale deed. i am of the considered opinion that this by itself does not in any manner, show. that the document was intended to be a mort age. Lastly. leamed counsel for y‘.) ‘ s d t u t p I d XI—HC—78 fSa .G.)