1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.484 OF 1989 1. Narhari s/o Piraji Tipre, age 22 years, occupation agriculture,r/of village Waghala, Taluka Pathri, District Parbhani. 2. Rama s/o Piraji Tipre, age 17 years, minor, u/g of real mother Lobhabai w/of Piraji Tipre, age 45 years, occup. agril. r/of Waghala, Tq.Pathri, 3. Narayan s/o Piraji Tipre, age 35 years, u/g of real brother Narhari s/o Piraji Tipare,r/of Waghala, Tq. Pathri, District Parbhani. 4. Lobhabai w/o Piraji Tipre, Appellants/ aged 45 years, occup.Agril. Original r/of Waghala, Taluka Pathri Plaintiffs (Resp.4 deleted as per the Order of Registrar dated 20.8.006.) versus 1. Ramkishan s/o Maroti Bhise, age 39 years, occup. Agril. r/of Waghala, Taluka Pathri District Parbhani. (Since deceased, through legal heirs as under) :- 1-A. Ashok s/o Ramkishan Bise, age 45 years, occup. Agril. r/of Waghala, Tq. Pathri, District Parbhani. 2 1-B. Baba s/o Ramkishan Bhise age 35 years, occup.Agril. r/of Waghala, Tq.Pathri, District Parbhani. 1-C. Shashikalabai w/o Ramkishan Bhise, age 60 years, occup. household, r/of Waghala, Tq.Pathri, Dist. Parbhani. 1-D. Suchita d/of Ramkishan Bhise, age 18 years, occupation: household, r/of Waghala, Tq.Pathri, Dist.Parbhani. 1-E. Sau. Chaya wo Ramrao Wagh, age 26 years, occup.household, r/of Pokharni, Taluka and District Parbhani. 1-F. Sau.Daivshala w/o Ankushrao Tambe, age 24 years, occup. householod, r/of Ekurkha, Tq. Purna, District Parbhani. 2. Piraji s/o Gangaram Tipare, Respondents/ age 50 years, occup. Agril. Orig. Defts. r/of Waghala, Tq. Pathri. ------------------------------------------------------ Shri Mukul Kulkarni, Advocate, holding for Shri A.H. Korhalkar, Advocate for the appellants. Shri S.S. Badve, Advocate for Respondent Nos. 1-A to 1-F. ------------------------------------------------------ Coram : P.R.Borkar, J. Date : July 22, 2010. ORAL JUDGMENT 01. This second appeal is preferred by original plaintiffs whose suit bearing R.C.S. No. 56 OF 1979 for declaration that the sale deed 3 executed by Defendant No.1 in favour of Defendant No.1 is not binding on 1/5th shares of plaintiffs in the suit property and that they were entitled to partition and separate possession of their share in the suit land was decree by the learned Civil Judge, Junior Division, Parbhani on 30.7.1981; which judgment and decree was reversed by the learned II Additional District Judge, Parbhani, in Regular Civil Appeal No.104 of 1981 decided on 31.3.1989, thereby dismissing the suit of the plaintiffs-present appellants. 02. Briefly stated, the facts giving rise to this appeal are as under; Appellants herein are the original plaintiffs. Plaintiff Nos. 1 to 3 are the sons of Respondent No.2 Piraji and Plaintiff No.4 is the wife of Respondent No.2. Respondent No.1 and 2 are original defendant No.1 and 2 respectively. Respondent No.1 died during pendency of the appeal and is represented by his legal heirs. Land bearing survey No.8 admeasuring 16 acres 1 4 guntha situated at village Waghala, Tq. Ppathri, District Parbhani is the ancestral property of Respondent No.2 Piraji-original defendant No.2. By sale deed dated 18.1.1975, Piraji sold southern side 1/2 portion of the said land to Respondent No.1-Ramkishan for Rs.7000/=. Appellants- original plaintiffs filed suit on 26.6.1979 alleging that the sale deed dated 18.1.1975 executed by Respondent No.2 in favour of Respondent No.1 was executed without any legal necessity and as such not binding on the shares of the plaintiffs in the suit property. Plaintiffs- appellants, therefore, sought declaration that the said sale deed is not binding on them. and they also sought partition and separate possession of their 1/5th share in the suit property. 3. Respondent No.1 Ramkishan filed Written Statement at Exhibit 18 and denied all averments in the plaint. He contended that the sale deed was executed by Respondent No.2 as Karta of the family for meeting house expenses and repayment of loans. He denied that the sale was not for legal 5 necessity and as such not binding on plaintiffs. 4. Respondent No.2 Piraji filed written statement at Exh.9. He made out a case that in between Respondents-defendants, there was no transaction of sale. The amount of Rs.7000/= was not received by him towards sale. However, according to Respondent No.2, he was in financial difficulties and therefore he had taken loans from Respondent No.1 from time to time. According to Respondent No.1, Respondent No.1 is money lender from whom he had taken loan of Rs. 8000/= and Respondent No.2 was demanding repayment of the said amount. It was agreed between them that Respondent No.2 would execute a nominal sale deed in favour of Respondent No.1 and hand over possession of the suit land to him and in turn, Respondent No.1 would execute a deed of conveyance in favour of Respondent No.2. Accordingly, Respondent No.2 executed the sale deed in favour of Resp. No.1 which was nominal and Respondent No. 1 executed an agreement for re-conveyance in favour of Respondent No. 2. The suit Property 6 was put in possession of Respondent No.1. It is alleged that the originally, amount of Rs.2000/= was taken as loan, but with interest the amount was shown to be more than what was borrowed. 05. The appellants-plaintiffs went to trial with averments in the plaint that it was a sale transaction, but it was not for legal necessity and as such not binding on them. The entire evidence was led on that line. 06. The trial court accepted the case of the plaintiffs-appellants and held that sale deed by Respondent No.2 in favour of Respondent No.1 was not for legal necessity and as such was not binding on the plaintiffs-appellants. The trial court decreed the suit. As against that, present respondent No.1 filed first appeal in the District Court. Before District Court same case, as made out in the plaint described above, was pursued. The District Court did not accept the case that the sale was not for legal necessity and held that the sale deed executed by Respondent No.2 was 7 binding on the appellants-plaintiffs and, therefore, allowed the appeal and dismissed the suit. 07. Respondent No.2 did not enter into witness box nor did he attempt to prove the case made out in paragraph 2 of his written statement (Exh.9). The plaintiffs examined no witness to prove the said case nor they sought any alternate relief. Unfortunately, this is a second appeal and by now, much water has flown. Although this appeal is pending since 1989, the fact remains that though the agreement for reconveyance was placed on record with list Exh.13, remained in file "D" as no attempt was made to prove the same nor Respondent No.2 Piraji filed any suit for reconveyance of property on the basis of said agreement. Be that as it may. 08. This second appeal is admitted 15.12.1989 on ground Nos. III to VI, XI and XII in the memo of appeal. For the purpose of convenience, following substantial question of law is 8 reformulated on 21.7.2010. " Whether Respondent No.1-purchaser (original defendant No.1) has proved that there was legal necessity for which original respondent No.2 (defendant No.2) has sold the suit land to him and that he had made necessary enquiries to satisfy about existence of legal necessity ?" 09. Heard Advocate Shri M.S. Kulkarni for the appellants and Shri S.S. Badve, Advocate for Respondents No.1-A to 1-F. Together, both the Advocates have taken me through entire record and even through the depositions of the witnesses. 10. Shri Mukul Kulkarni, learned Advocate for the appellants, has taken me through paragraphs 11 to 14 of the judgment of the trial court wherein aspect of legal necessity is discussed. The trial court disbelieved the case of defendant No.1 mainly because evidence of Defendant No.1 was not corroborated by any document when he said that the land was sold for repayment of dues of the society and tahsil office and for performance of marriage 9 of appellant No.1. Defendant No.1 stated that the documents regarding tahsil office dues were placed on record. Though respondent No.1 examined two more witnesses from the society office, so also one Santaji, their evidence is disbelieved. On the other hand, the first appellate court for reasons discussed in details in paragraphs 13 onwards of its judgment, has come to the conclusion that the trial court committed error in disbelieving oral evidence without any reason. In fact, original kirdbook and ledger of the cooperative society were brought before the court and inspected. 11. It may be noted here that Respondent No. 2, who had executed sale deed, has stated that he had taken loan of Rs.2,000/= from Respondent No.1 and that the amount was increased due to interest thereon and as per the case of Respondent no.1 amount of Rs.8000/= was due when the sale deed was executed. No attempt is made by the plaintiffs to rebut the said contention. There is no reason why respondent No.2 should have come with such a case. 10 In fact, agreement for sale, the copy of which remained unproved on record and which is of the same date as that of the sale deed, shows that the defence taken by respondent No.2 (deft.No.2) may have some merits. However, the plaintiffs did not pursue their case on that line for reasons best known to them and their advocate in the trial court. 12. In order to prove legal necessity, Defendant No.1-Respondent No.1 Ramkishan examined himself at Exhibit 41 and stated that respondent No.2 sold suit land for repayment of debts of cooperative society, so also of tahsil office. There was also debt of one Santaram as defendant No.2 had obtained an amount of Rs.2000/= on the basis of land. According to Respondent No.2, Respondent No.2 also performed marriage of appellant No.1 for second time by utilising the amount taken from him. So, the details are given. It is argued by Advocate Shri Mukul Kulkarni that Respondent No.1 Ramkishan did not state that he had made any queries with anybody. But, 11 examination-in-chief of Respondent No.1 shows that he was knowing the details of necessity for which land was sold and he gave those details. 13. Respondent No. 1 examined one Dattatraya Navale as DW-3 at Exhibit 43. He deposed that the sale was for repayment of loans of tahsil office and credit society and also for performance of marriage of appellant No.1. This witness is from the same village. 14. Then there is evidence of DW-4 Santram at Exhibit 44. He stated that he had taken land from Respondent No.2 on crop share basis and he had paid Rs.1000/= to Respondent No.2. The land was given for cultivation for one year only and thereafter he left the land for which he got an amount of Rs.1000/= from Respondent No.2. From the evidence of witness Santram it appears that an amount of Rs.1000/= was paid by Respondent No.2 to this witness to get the land released from him. Santram in his cross examination stated that he was in possession of the land in lieu of Rs. 12 1000/=. There could not have been oral evidence regarding such transaction. The fact remains that Santram was in possession of the property and gave up possession of the same after one year. 15. At Exhibits 49 and 56, there is evidence of DW-5 Marotrao and DW-6 Tulsiram. Both were working as Secretary in cooperative credit society of Waghala. Marotrao had been Secretary since 1979, whereas Tulshsiram was Secretary during the period 1974 to 1977. Both have stated that Respondent No. 2 was in arrears of loan of the society and as on 26.5.1973, he owed Rs,1650/= to the society towards loan obtained by him. They also deposed that on 27.3.1973, defendant No.2 paid entire loan. It is to be noted that the sale deed is dated 18.1.1975. DW-5 Marotrao stated that the arrears of s.1650/= were exclusive of interest and the interest was of Rs.320/=. This witness being Secretary since 1979, he was in possession of record as on the date of his deposition i.e.17.12.1980 and he deposed on the 13 basis of said record as he was knowing business affairs of the society. DW-5 Marotrao did not produce copies of books of accounts, but DW-6 Tulshiram had brought original kird and on that basis deposed that an amount of Rs.400/= was repaid by defendant No.2 on 21.1.1975 and an amount of Rs.650/= on 6.2.1975. On 27.3.1975 he deposited Rs.967/=. According to this witness, the total amount repaid by deft No.2 is Rs.2017.00/= including principal amount and interest thereon. In cross examination of Defendant No.1 Ramkishan it is brought on record that an amount of Rs.400/= to Rs.500/= was repaid in tahsil office. 16. Considering the facts and circumstances of the case, the first appellate court came to the conclusion that the legal necessity was proved. The judgment of the first appellate court is well reasoned and cannot be termed as perverse. After giving anxious consideration to the facts, evidence and documents on record, I hold that there was legal necessity for which the sale deed 14 was executed by defendant No.2 in favour of defendant No.1. The transaction was entered into by defendant No.1 for the purpose of satisfying various loans and also for getting back land from Santram and also for marriage of appellant No.1. 17. In the result, this second appeal fails and the same is accordingly, dismissed. pnd/ sa484.89 (P.R.BORKAR, J.) /