•3^ '•a' t;'r';' 1 I IN THE HIGH CQURT OF JUDJCATURE AT BILASPUR CHHATTISGARH ^ ^Siiligl Second Appeal No. /2004 Appellants i^" 1. Tulsi Ram, aged about 50 years 2. Munshi Ram, aged about 48 years i&c\.^^? Both s/o Bihari Satnami, Cultivators, '\ ..•••"'•%i^ R/o Village Puran, Tahsil Bemetara, ^••'l'^'"''.^ ^^&'" ^ ••»' c^ ^^ . '^v^ ^ ^-" ./• Respoadents Distt. Durg (Chhattisgarh). VERSUS y The State of Madhya Pradesh (Now The State 'of Chhattisgarh) Through The Collector, Durg District Durg (Chhattisgarh) Taran 'Das, S/o Phool 'Das, J^wrongly written as Phuldas) aged about 52 years, Cultivator R/o Village Puran, Tahsil Bemetara, Distt. Durg (Chhattisgarh). Suit Valued Rs. 381/1= S.A. Valued Rs. 8.831/- -'" ' SECONB APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PR0CEDURE ^' k^" [Against the Judgement and decree dated 05.11.03, .^»- passed by IInd Additional District Judge, Bemetara in ,,>s'; "l"'t!0,,. ^' . i.-.'SiL '"S^ -b^ V j !»!• «W»'t9 ^/ Tutsi Ram and another The State of Madhya Pradssh (Now the State pf Chhattisgarh) and anofher. Shri M.D. Dhote, learr Ms. Sangeeta Mjshra, counsel-for the petitioners. Lawyer for respondent No.l/'State. E22.01.2818] (2) The defendants here'sn are suffering a decree for possess permanent injunction passed by the trial Court and confirmed Appellate Court. The suit \sras fiied at the instance of respondent No.2, Taran Das who owned agricuftural land 2.02 hectare bearing asra No.54 at village Puran, TahsiS District Durg. ion and fl!'!S,t iasurin.q metara, (3) The case of the piaintiff in the plaint is that on 10.05.1990 he took loan of Rs. 50,000/- from the present appellant and handed over the posssssion of the entire 2.02 hectares of tand and upon his failure to repay the loan, he executed saie deed of an area of 1.30 hectares out of the say 2.02 hectares. After the execution of the sale deed on 22.06.1994,'the complete loan amount was satisfied and the piain'tiff asked Tor possesston of the*remaining part of the land admaasuring 0.72 hectares. However, in sp'rte of repeated request, the respondent No.2 did not oblige him, compelling him to frie present suit. (4) The case of the defendants before the trial Court was that th< entire land was purohased by him on 10.05.1990 and to prove this, an agreemenS was executed between the partjes. Out of the total amount -/ ..^'.: »i.i !!!!8" is fSSSW^ 3- of land, Munshi Ram had paid Rs. 80,000/- and the remainlng amount paid by Tulsi Ram. According to the defendants, the document exhib'rt D/1 dated 10.05.1990 was an agreement to sale and the refused to execute the sate deed Tor the remaining part of the admeasuring 0.72 hectares and therefore, they are entitled to rotect their possession under provisions of Section 53A of Transfer of sperty Act. According to them, there is no illegal possession of the suit land, therefore, decree for possession or injunction cannot be ?ranted in favour of the plaintiff and against them. (5) After appreciating the evidence subm'rtted by the piaintiff and ifendants, the leamed trial Court, in answer to the additiona! issue No.18, has recorded the finding that the plaintiff has repaid the entire amount of loan to the defendants/appeliants and thereafter a saie deed dated 22.06.94 was executed for 1.30 hectares of land. Learned tria! Court has ateo found that the plaintiff is the owner of 0.72 hectares of land and the possession of the defendant of the said iand is fflega!. It was the categorica! finding of the trial Court in answer to the issue no. 11 and 12 that exhibit-D/1 was executed between the parties in proof of the amount of toan advanced to the plaintiff by the defendants, thus, according to the leamed trial Court, the document exhib'rt-D/1 is not m the nature of agreement of sale but was by way of security to protect the amount of loan advanced by the defendants to the plaintiff. The tria! Court had also rejected the counter-ciaim preferred by the appellanVdefendants on the ground that the defendants have not adduced any evidence nor they have pieaded in their written statement as to when notice for specific performance was issued and *ffhat efforts they have made for compeffing the plaintiff to execute the sale deed of the suit land. Apart from this, the trial Court, whiie deciding jssue no.15 has recorded the finding that since the document exhibit-D/1 is not an agreement of sale but was executed as security for the !oa transaction , the counter-Glaim couid not be allowed. (6) The mgtter issue. ^. Court has ry reasoned order. and has discussed with the judgment the findings recorded by the appellate Court has deait the the ent'ire evidence from the passed by the trial Court on the •;'ae jiat Bwnffr basis of its own reasoning and ateo by agreeing with the reasons assigned by the trial Court. Leamed counset for the appellants submits that the Courts below have erred in considering exhibit-D/1 as a document evidencing security Tor loan whereas, in Tact, this document is an agreement of sate. (7) In the opinson of this Court, the Courts below have appreciats the entire evidence on record and has deaft with contente of exhibit-D/1 i^tensively and has also considered the condud of the partses to hold that exhib'rt-D/1 is 'sn Tact a document executed bythe plaintiff by y/ay of security for the loan transaction of Rs.50,000/-. To arrive to this finding, the Courts below have appreciated the statements of the rarties and conduct of the defendants vAio got executed the saie deed oniy to the extent of 1.30 hectares of land out of the land Tor 'itrtiich agreement was entered. Apart from this, the defendants never any efforts to compel the piainWf for specific performance of the agreement, if according to them exhibit- D/1 was an agreement of sale. (8) tn the oplnion of th'ss Court, both the Courts have concurrently found that exhibit-D/1 is not an agreement of sate, No substantiat question of iaw arises for determination in this appeal which fails and is hereby dismissed at the admission stage itself. _, _ _ ___- - Sd/- Prashant Kumar Mishra Judge