1 (SA222.89) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.222 OF 1989 1. Ramdas Shankar Ahire ) 2. Pandit Nagu Ahire ) (since deceased through Lrs) ) 2A Nana Pandit Ahire ) 2B Rajendra Pandit Ahire ) 2C Subhash Pandit Ahire ) 3. Dagu Shankar Ahire ) (since deceased through Lrs) ) 3A Smt. Vimalabai Dagadu Ahire ) 3B Samadhan Dagadu Ahire ) 3C Dnyaneshwar Dagadu Ahire ) 3D Sau Aruna Balu Dunbale ) 4. Bhima Shankar Ahire ) (since deceased through Lrs) ) 4A Shri Sanjay Bhima Ahire ) 5. Bhagat Shankar Ahire ) 6. Smt. Sarjabai Shankar Ahire ) ...Appellants V/s Gangadhar Laxman Shinde ) ....Respondent. Mr. Dilip Bodake for the Appellants. Mr. S.G. Karandikar for the Respondent. 2 (SA222.89) CORAM: V. M. KANADE, J. DATE : 30th June, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Appellants and the learned Counsel appearing on behalf of the Respondent. 2. Appellants are original Defendants and the Respondent is the original Plaintiff. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendants”. 3. Plaintiff filed a suit for declaration that he is the owner of the suit property and for possession of the suit property alongwith mesne profits. Defendants filed their Written Statement and contended that the said sale-deed was obtained by fraud and the land was only meant to be given as security and mortgage for the loan which was given by the Plaintiff to the Defendants’ father. It was contended that they were in possession of the suit premises. Trial Court decreed the suit. However, the lower Appellate Court allowed the appeal filed by the Plaintiff and decreed the suit. Being aggrieved by the judgment and order passed by the lower Appellate Court, original Defendants have filed this second appeal. 3 (SA222.89) 4. This second appeal was admitted on the following two substantial questions of law:- “Whether the sale deed allegedly passed in favour of the respondent is void and whether Appellants established that the same was the result of deception practised upon them?” 5. The learned Counsel appearing on behalf of the Appellants submitted that, in the first place, it is an admitted position that the land in question was Inam Watan Land and, therefore, the said land could not have been sold without taking permission from the competent authority. He submitted that the Trial Court had taken this fact into consideration. However, the lower Appellate Court did not consider this important aspect. He secondly submitted that both the Courts had held that Defendants were in possession of the premises. He further submitted that it is therefore inconceivable that after execution of sale deed, the Plaintiff would have permitted the Defendants to continue to be in possession. He , therefore, submitted that this fact was not considered by the lower Appellate Court. He submitted that the lower Appellate Court did not take into consideration the facts and circumstances of the case which clearly indicated that the transaction in dispute was not a sale transaction but was a loan transaction simpliciter. 4 (SA222.89) 6. On the other hand, the learned Counsel appearing on behalf of the Respondent/Plaintiff submitted that Defendants had never pleaded in the Written Statement that the suit land was inam land. No issue was framed and, therefore, the lower Appellate Court had rightly not taken into consideration the said aspect. Secondly, it is submitted that no evidence was led by the Defendants to show that the said sale deed was obtained by fraud and no particulars of alleged fraud had been given by the Defendants. It is also submitted that the sale consideration was paid in the presence of the Sub-Registrar. 7. In my view, submissions made by the learned Counsel appearing on behalf of the Appellants cannot be accepted. The lower Appellate Court has given a very well reasoned order. It is an admitted position that there is no specific plea in the Written Statement to the effect that the suit land was Inam Watan Land and, therefore, no finding could have been given by the Trial Court on that point in the absence of any specific plea. The lower Appellate Court had also considered the evidence and given a finding that Defendants had not established that the sale deed was obtained by fraud. 8. The substantial questions of law which were framed by this Court while admitting the second appeal are, therefore, answered in the negative and this second appeal is dismissed. 5 (SA222.89) 9. Request is made by the learned Counsel appearing on behalf of the Appellants for continuation of the interim order passed by this court in order to enable the Appellants to challenge this judgment in the Apex Court. Interim order passed by this court, therefore, shall continue for a period of eight weeks from today. (V.M. KANADE, J.)