(1) SA. 567.2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 567 OF 2003 Bhaurao S/o Bhujangrao Kabde, Age : 48 years, Occu.: Service, R/o Gurnal, Tq. Udgir, Dist. Latur .. Appellant VERSUS 1] Kishanrao S/o Jivanrao Konale, Age: 63 years, Occu.: Agri., R/o Sindhi Kamtha, Tq. Udgir, Dist. Latur 2] Shamshoddin S/o Gulab Jainoddin, Age : 63 years, Occu.: Agri., R/o Gurnal, Tq. Udgir, Dist. Latur 3] Badesaheb S/o Vajirsaheb, Age : 53 years, Occu.: & R/o As above .. Respondents Mr. R.B. Deshmukh, Advocate h/f. Mr. S.V. Natu, Advocate for the Appellant ... CORAM : K.U. CHANDIWAL, J. DATED : 30TH APRIL, 2010 PER COURT:- 1] Heard Mr. Deshmukh for the plaintiff extensively. The learned Civil Judge Junior Division, Udgir decreed the suit being Regular Civil Suit no. 63 of 1984. The aggrieved defendant challenged the same before the learned Joint District Judge, Latur in Regular Civil Appeal no.16 of 1994, (2) SA. 567.2003 who reversed the decree and dismissed the suit by order dated 31.12.1999, the same is questioned by the plaintiff. 2] The learned counsel for the appellant/ plaintiff, posed following questions to be substantial between the parties which needs attention. [i] Whether it is legal and permissible for first appellate Court to reverse a decree passed by the trial Court by re-assessing the entire evidence only to reach a second opinion without declaring the assessment by the trial Court as perverse or not based on evidence otherwise illegal? [ii] Whether the learned first appellate Court has considered the effect of absence of specific denial by the defendants regarding the pleadings of the plaintiff that "the sale deed stated above is thus a result of violence and coercion on the part of the defendant. It is void as no consideration was agreed to be paid nor in fact passed" and "there was neither any agreement between the parties to the sale deed nor was any consideration agreed nor paid." 3] The first part of above posed question to be formulated is indeed dealt with in the celebrity judgment of the Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. (2001) 2 Mh.L.J. 786. In paragraph no.15 thereof the Apex Court has observed "While writing a judgment of reversal the appellate Court must remain conscious (3) SA. 567.2003 of two principles. Firstly the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact." . In the light of this, the first question posed by the learned counsel that the finding of the first appellate Court suffered any perversity by evaluating the evidence to reach to the conclusion against the plaintiff is answered in the negative. 4] The plaintiff's case is that there was controversy between him and his wife. Divorce deed was executed on the same day, under duress and pressure. The defendant no.1, brother of his wife got the sale deed executed against the wishes of the plaintiff by tying him for whole day and taken him to the Office of the Registrar. Such transaction according to the plaintiff was bogus, void, and without any consideration. (4) SA. 567.2003 5] The repeated contention of the learned counsel for the appellant is in paragraph no.5 of the plaint, the plaintiff pleaded, "That taking undue advantage of the distressed condition and the poverty, lack of man power, the appellants also kept one sale-deed ready for registration. The respondent was compelled to sign the sale-deed and the same was registered at Sr.No.2769 on 28.12.1981. The sale- deed was in respect of of the suit land. It is contended that there was no agreement between the parties, prior to the execution of the sale-deed, nor was any consideration agreed to be paid." 6] The learned counsel submits while controverting these pleadings, in the written statement, in paragraph no.6 the defendant did not specifically deny about the non-existence of any agreement of sale. Paragraph no.6 (page 88) as a whole is reproduced as under:- "6. That, the contents in para no.5 of the plaint are totally false and bogus one. The same are specifically denied by the defendant. It is true that the plaintiff has executed a registered sale deed of the suit land in favour of defendant. The alleged number and the date narrated in the para is correct. The plaintiff has executed the sale deed of the suit land in favour of defendant with a free will and consent. The sale deed is valid and perfect one. The plaintiff has executed the same at the Sub- (5) SA. 567.2003 Registrar Office Udgir in presence of respectable panchas. Therefore the sale of the suit land is totally perfect and valid one, because the same is executed after obtaining the consideration amount." 7] The context in which paragraph 5 of the plaint is dealt with, does not warrant that there should have been a specific denial from the defendant about the sweeping sentence of non-existence of any agreement of sale. The overall pleadings of the defendant in unequivocal terms illustrate that the parties had a sitting/meeting and then only it was a free will of the plaintiff which culminated into the execution of the sale deed. 8] The evidence to which the learned Court of first instance of Ravan has relied upon is properly dealt with by the first appellate Court. It is revealved in the said evidence, Ravan is admittedly maternal uncle of the plaintiff. He was more leaning to the case of the plaintiff. His cross-examination indeed illustrate, he crossed the limits of an ordinary witness to speak the true sense of the events but has germinated the magical events. The first appeal Court has dealt with evidence of Ravan in paragraph no.13, which needs attention. Ravan has given a different story about the incident alleged to have taken place on 27.12.1981. He states that the plaintiff Bhaurao had gone to village Sindhikamath to bring his wife Suryakala but she was not in the (6) SA. 567.2003 village. Ravan claims that a quarrel ensued between the villagers and the plaintiff. The villagers had tied down the plaintiff to a pole and started assaulting and beating him. He says that he had gone to rescue plaintiff Bhaurao, however, the persons informed, they will not release Bhaurao unless Bhaurao signs the divorce deed. He accepts, there was no other reason for quarrel except the signing of divorce deed. The evidence also illustrate that plaintiff or his parents are not resident of village Gurnal for last 2-4 years. Ravan has offered an evasive reply that he does not know whether Bhaurao executed a sale deed exhibit 79 in lieu of return of amount of Rs.10,000/- which was paid to him by way of dowry. Thus, in view of this discussion, evidence of Bhaurao or the other witness Kishanrao, could not match to each other. Inspite of Ravan witnessing the sale deed, he tried to take a somersault thereof. 9] The sale deed at exhibit 79 is signed by plaintiff Bhaurao with the witness Ramrao Apparao Patil, Balekhan, Jeevanrao Patil and thumb impression of Madhav Ravan Hasnale, Ravan Sakharam Hasnale all residents of Gurnal as attesting witness. Some of other witness from the village Sindhikamath as also Gurnal and therefore, out of 4 persons two persons are from Sindhikamath (from the side of defendants and remaining two witnesses from village Gurnal who are relatives of the plaintiff Bhaurao). In the sale (7) SA. 567.2003 deed, Bhaurao has acknowledged receipt of Rs.3000/- as the sale consideration, having received prior to execution of the sale deed from defendant Kishanrao. The document being registered with the competent authorities under the law has a presumptive value. It is not the sale deed that carries the presumptive value, the subsequent conduct also warrants attention. The mutation after the sale deed was carried out by virtue of entries at exhibit 72 by entry no. 267 which in unmistakable terms illustrate the sale transaction of defendant no.1 dated 28.12.1981. The mutation entry was certified on 18.9.1982. It is curious, the plaintiffs do not object to the mutation entry no.267 at any time as it was and the concerned authorities carried the mutation. The possession after the sale deed over the suit land remained for a long duration and thereafter, the exercise of filing the suit has taken place. 10] The contention that the learned first appellate Court erroneously interpreted or dealt with the evidence, is difficult to act upon, as I find that though the first appeal Court had no occasion to observe demeanor of the witnesses, however the document and the nature of the evidence was sufficient for him to reach a conclusion what was the nature of transaction and held the sale deed was executed by the plaintiff Bhaurao. Taking these (8) SA. 567.2003 aspects into consideration, the evidence recorded prior to agreement of sale or no agreement of sale will not change the colour and complexion of the matter to throw away the registered sale deed having been acted upon by the plaintiff and also the respondent-defendant. 11] Second Appeal does not project substantial questions of law as posed hereinabove, dismissed. No costs. Sd/- (K.U. CHANDIWAL, J.) arp