1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.267 OF 1990. 1. Abhimanyu S/o Marutirao Doiphode, Aged 28 years, Occ.Agri., R/o Doiphodwadi U/v Yellamghat Taluka and Dist.Beed. 2. Maruti S/o Laxmanrao Doiphode, Aged 66 years, Occ.and R/o as above. ... Appellants. Versus 1. Bhimrao S/o Vithoba Munde, Aged 31 years, Occ.Agri., R/o Doiphodewadi, u/v Yellamghat Taluka and Dist. Beed. 2. Bhau S/o Saka Doiphode died per L.Rs. (a) Wadja S/o Bhau Doiphode, Aged 46 years, Occ.and R/o as above. (b) Satwa S/o Bhau Doiphode, Aged 41 years, Occ. and R/o As above. (c) Karbhari S/o Bhau Doiphode, Aged 30 years, Occ.and R/o as above. ' 2 (d) Indrabai W/o Bhau Doiphode, Aged 65 years Occ.and R/o as above. (e) Shewantabai W/o Babu Thombre, Aged 43 years, Occ.Agri., R/o Dahiphal Vadmauli Tq. Kaij, Dist. Beed. (f) Janabai W/o Rama Tonde, Aged 41 years, Occ.Agri. R/o Nagzari, Tq. Kaij, Dist. Beed. (g) Trivenibai W/o Raosaheb Shavre, Aged 38 years, Occ. and R/o as above. (h) Suksabai W/o Dattu Saruk, Aged 35 years, Occ.Agri., R/o Sarukwadi Tq. Kaij, Dist. Beed. ... Respondents. ... Mr.S.P.Deshmukh, advocate for the appellants. Mr.Manish P.Tripathi, advocate holding for Mr.K.J.Ghute Patil, advocate for the Respondents. ... CORAM : S.V.GANGAPURWALA,J. Date : 18.11.2010. ORAL JUDGMENT 1. This is defendant Nos.1 and 2's Second Appeal. The present Respondent No.1 has filed civil suit bearing RCS No.128/1983 against the present appellant and Respondent for redemption 3 of mortgage executed by the plaintiff in favour of the defendant vide registered mortgage dated 13.9.1978. Vide the said mortgage deed, the plaintiff has mortgaged his property from S.No. 538 in favour of the defendant Nos.1 and 2 for Rs.5,000/- (Rupees five thousand). It was the case of the plaintiff that the plaintiff was to repay Rs.5,000/- (Rupees five thousand) to the defendant Nos.1 and 2 within six years and thereafter the defendant would reconvey the said property to the plaintiff. The defendant No.1 was put in possession of the suit property pursuant to the mortgage dated 13.9.1978. According to the plaintiff, he had been to the defendant to repay the said amount to the defendant but he refused to accept the same and reconvey the property, as such the suit was filed. 2. The defendant NO.1 contested the suit on the ground that plaintiff had no title to mortgage 33 gunthas of the land inasmuch as his 4 annas share can come to only 25 gunthas. The theory of exchange with defendant No.3 in respect 4 of 16 gunthas of land is not proved and as such the plaintiff had no right, title or interest to mortgage 33 gunthas land. The defendant No.3 also denied the theory of exchange put forth by the plaintiff. The trial Court by its judgment and decree dated 9.10.1987, decreed the suit and passed preliminary decree as per Order 34 Rule 7 of the C.P.C. The defendant Nos.1 and 2 filed RCA No.38/1988. The District Judge, Beed vide its judgment and decree dated 18.12.1989, dismissed the appeal. The defendant Nos.1 and 2 have assailed the said judgment and decree in the present Second Appeal. 3. The Second Appeal has been admitted on following substantial questions of law : "(III-A) It has been concurrently held by the Courts below that Survey No.538 was owned by Appasaheb Kushaba and Laxman Uda. Now in the joint purchase by the plaintiff's father and other persons from Devidas Ganpat, Sarottam Appaji, 5 Bhawani Shankar and Narhar Raju Thigle who were the original owners of S.No.436, 412, 424, 413, 412/3, 425/3, there is no question of any land, whose converted S.No.is 538, the suit land forming the part of the above transaction and much less the division of shares among purchasers and further the exchange of lands between the plaintiff's father and the defendant No.3, who were among the joint purchasers. (III-B) The Courts below have completely disregarded the entries of possession of the defendant No.3 of his land in S.No.538 the suit land right from 1946 to 1978 and has given undue weightage to the oral testimony of the plaintiff's witnesses. The Court has committed a grave error of law in giving the oral testimony over riding effect in the fare of the written and 6 documentary evidence. (III-C) The plaintiff's father has got share in S.No.538 to the extent of 4 pai only, which comes to around 15 gunthas of land. Out of the 15 gunthas, plaintiff's father has sold 12 gunthas land to defendant No.2 in 1971. So, what remained with plaintiff's father was only 3 gunthas in S.No.538. Then how 33 gunthas of land would be mortgaged by plaintiff from S.No.538. The plaintiff ought to have proved that he had in fact with him partible 33 gunthas of land in S.No.538 which burden he was to bear and the Courts below have wrongly cast the burden on defendants to show that the plaintiff had 3 gunthas land only. (III-D) Mandatory provisions of Transfer of Property Act regarding the exchange have not been complied 7 with such as registration of transfer etc. in decreeing the suit of the plaintiff for redemption of the mortgage of the suit land bearing S.No.538 to the extent of 33 gunthas situated at village Yalamghat." 4. I have heard Mr.Deshmukh, learned counsel for the appellants and Mr.Tripathi, learned counsel for the Respondent No.1. 5. Mr.Deshmukh, learned counsel for the appellant submitted that : (i) the theory of exchange as putforth by the plaintiff can not be entertained for the simple reason that there is no registered instrument evidencing exchange. The exchange has to take place by registered instrument. In absence of the same, there can not be any valid and legal exchange. (ii) The plaintiff can not prove his title 8 over 33 gunthas of land in S.No.538. The plaintiff's father had already sold 12 gunthas of land to defendant No.2 in 1971 and so what remains with the plaintiff is only 3 gunthas of land in S.No.538. (iii) The plaintiff could not have transferred more than what he legally and legitimately owns. (iv) The Courts below have perversely appreciated the evidence on record. 6. Per contra, Mr.Tripathi, learned counsel for the Respondent/original plaintiff contended : (i) Both the Courts on appreciation of evidence have concurrently come to the conclusion that plaintiff has proved the exchange with defendant No.3 and has also proved his ownership over 33 gunthas of land in S.No.538. (ii) Eight persons had purchased 22 acres of 9 land for Rs.800/- (Rupees eight hundred) and immediately thereafter exchange of 16 gunthas of land had taken place between the plaintiff and defendant No.3 which is proved by four (4) witnesses examined by the plaintiff. The price of said 16 gunthas of land was less than Rs.100/- (Rupees hundred). Such transfer did not require any registration in view of the provisions of Transfer of Property Act read with Section 17 of the Registration Act. (iii) The parties have voluntarily on their own volition entered into the transaction of mortgage. No grievance was raised by the appellants about the title of the plaintiff at the time of mortgage. The suit is for redemption of mortgage. The defendants can not be permitted to go behind the recitals of the registered instrument of mortgage. 7. It is not disputed that about eight persons had purchased 22 acres of land from various survey numbers. The plaintiff's father was also one of them. The bone of contention of 10 the present appellant is that the plaintiff has not proved the theory of exchange. Both the Courts on appreciation of the evidence of the witnesses have concurrently come to the conclusion that the plaintiff has proved the theory put forth by him of exchange. The Courts have relied on the evidence of Rama Doiphode, Sitaram Doiphode and Rama Arjuna. Their evidence has not been shattered in the cross-examination. It is not the case of perverse appreciation of evidence. Moreover, taking into account the price of the land and as discussed by the trial Court, the same would be below Rs.100/- (Rupees hundred) and as such did not require execution of registered instrument to effectuate exchange. The Courts have also relied on Exhs.63 to 68 i.e. 7/12 extracts which go to show that the exchange of the land had taken place in the year 1946 and on that basis entries in the 7/12 extracts are effected. As such the defendants after such a long slumber can not agitate otherwise. 8. The transaction of mortgage is not disputed. The mortgage deed at Exh.84 is proved. 11 In light of the fact that the said registered instrument of mortgage has been proved and the theory that once a mortgage is always a mortgage would come into operation. It is also proved that plaintiff was and is ready and willing to pay mortgage amount to the defendants and get it redeemed. In such circumstances, the Courts below have properly passed the decree of redemption of mortgage. 9. In light of the above, the substantial questions are answered accordingly. The Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa26790