Motilal Pandey Vs Kailash Pathak

A.K. Shrivastava, J.

The Second Appeal has been filed at the instance of defendant who has lost from both the Courts below. The suit for injunction filed by plaintiff/respondent was decreed by the Trial Court and the appeal which was filed by the defendant has also been dismissed by the impugned judgment and decree.

In brief the suit of plaintiff is that the parties to the suit are the resident of Village Hinotia (Bhui), Tehsil and District Jabalpur. The suit property is agricultural land, the description whereof has been mentioned in Para 2 of the plaint, is in possession of plaintiff Kailash Pathak. The defendant is trying to take illegal possession of the suit property. It has also been pleaded that on 5-7-1995 when plaintiff went to plough the field, defendant did not permit him and also gave threat to kill, hence, the instant suit for injunction has been filed. The basis of suit, according to the plaintiff, is the sale-deed which according to him, was executed by defendant in favour of his father Ramsevak Pathak somewhere in the year 1975. Further, it has been pleaded that his father who brought the suit property from defendant died in the year 1994 and on the death of his father he became owner of the suit property. It has also been pleaded by plaintiff that during his life time plaintiff''s father gave disputed land to different persons on Shikmi basis.

The defendant refuted the plaint averments by filing written statement and specifically pleaded therein that the sale-deed which was executed in favour of the father of plaintiff was as a security of loan which he took from him and it was not an out and out sale. Further, it has been pleaded in Para 2 of the written statement that on account of repayment of the loan amount, plaintiff''s father after making necessary endorsement in that regard on the sale-deed returned the original sale-deed to the defendant. It has also been pleaded by the defendant that possession always remained with him.

Learned Trial Court framed necessary issues and after recording the evidence of the parties decreed the suit of plaintiff holding him to be the Bhumiswami having possession on the suit property.

The appeal which was preferred by the defendant has been dismissed by the impugned judgment and decree passed by learned First Appellate Court.

In this manner, the instant second appeal has been filed by the defendant.

This Court on 11-4-2005 admitted the second appeal on the following substantial questions of law:

(1) Whether the finding of both the Courts below to the effect that the transaction between the parties was a sale deed and not a document executed for the security of the loan is illegal in view of the fact that the document was returned to the appellant?

(2) Whether the finding of Courts below that the respondent is in possession of the suit land is illegal?

The contention of Shri V.R. Rao, learned Senior Counsel is that the original document of sale-deed was produced by defendant from his possession and the same was marked as Exh. D-l and, therefore, it should be deemed that transaction between the defendant and the father of plaintiff, namely, Ramsevak Pathak was only a loan transaction and in order to secure the loan, sale-deed (Exh. D-l) was executed on 22-6-1973. By pointing out the note on the original sale-deed (Exh. D-l) it has been contended by learned Senior Counsel that on 15-5-1975 the defendant repaid the loan amount Rs. 1200/- to the father of the plaintiff and thereafter after endorsing the said acknowledgment and by putting his signature, father of the plaintiff returned the original sale-deed to the defendant and, therefore, it is a clear case of loan transaction and the transaction was not out and out sale.

It has also been put-forth by learned Senior Counsel that so far as the possession part is concerned, no revenue record has been filed by the plaintiff in order to demonstrate his possession. The contention of learned Senior Counsel is that so far as Bhoo Adhikar Avam Rin Pustika (Exh. P-2) is concerned, it simply shows that the name of the father of plaintiff was recorded as Bhumiswami in the revenue record on the basis of the alleged sale deed (Exh. D-1), but, nowhere from this document it can be gathered that plaintiff is possessing the suit property. In this state of affair, according to learned Senior Counsel, the two Courts below erred in substantial error of law in decreeing the suit of injunction filed by plaintiff.

On the other hand, Shri Pradeep Naveriya, learned Counsel for the respondent/plaintiff argued in support of the impugned judgment and submitted that there is finding of two Courts below holding that the plaintiff is possessing the suit property on the basis of sale-deed executed by defendant in favour of plaintiff''s father Ramsevak Pathak and, therefore, this Court should not interfere in the finding of fact arrived at by the two Courts below.

Having heard learned Counsel for the parties I am of the view that this appeal deserves to be allowed.

Regarding Substantial Question of Law No. (1):

On going through the record of the Trial Court it is revealed that the original sale-deed (Exh. D-1) said to have been executed between defendant and plaintiff''s father Pandit Ramsevak was produced by defendant in the Trial Court from his possession and the plaintiff only filed its certified copy (Exh. P-l). If the transaction between the defendant and plaintiff''s father was out and out sale and was not a loan transaction, why original sale-deed was returned to the defendant ? Hence, the act of returning the original sale-deed by the father of plaintiff to defendant indicates and one could infer that the transaction between the parties was only of loan and it was not intended by them that the transaction is out and out sale. The strong probability that the transaction was out and out sale, becomes more strong on bare perusal of the acknowledgment which was made by plaintiff''s father receiving the loan amount. According to me, the note which has been put on the second page of the sale-deed (Exh. D-l) is having much significance and important bearing in the case. It would be relevant to quote the note which has been put on the original sale-deed which reads thus:

eS jkelsod oYn Jh fxjtkuan lkfdu fguksfr;k ftyk tcyiqj Fkkuk cjsyk bl ckr dks rLnhd djrk gwwa fd bl jftLV�h dh tehu ij 1200 vadu ckjk lkS :- Jh eksrhyky oYn ckykizlkn dks fn;s Fks vkSj tehu jftLV�h fd;s Fks vkt fnukad 15&5&75 dks eS viuh iwjh jde eksrhyky ikUM+s ls ik pqdk o vkidh tehu okil dj nh] vkt ls esjk ml tehu ls dksbZ laca/k ugh blfy, ;g jftLV�h vekU; ekus tkos bl okLrs jftLV�h ij fy[kdj jftLV�h dk dkxt vkidks okil fd;k tkrk gS vkt ls vkidh tehu ikd lkQ gS vkSj mlds iwjs vf/kdkjh vki gS blfy, lun jgs o oDr ij dke vkosA

The scribe of this note is Prabhakar (D.W. 2). On the left side of the note Ramsevak, who is the father of the plaintiff has put his signature. The plaintiff Kailash Pathak (P.W. 1) has expressed his inability about the said note on the sale deed and has stated that he is not aware whether the transaction was loan transaction and for security purpose sale-deed was executed. However, there is specific evidence of defendant Motilal (D.W. 1) who is the party to the transaction that the transaction between him and plaintiffs father was of loan only and the document of sale-deed (Exh. D-l) was written only for security purpose. The above said note on the original sale deed stands proved from the evidence of scribe Prabhakar (D.W. 2) as well as from the evidence of defendant/appellant Motilal.

The Supreme Court in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, , has categorically held that the question whether a given transaction is a mortgage by conditional sale or a sale out-right with a condition of repurchase is a vexed one and must be decided on its own facts. In such cases the intention of the parties is the determining factor. The rule of law on this subject is one dictated by common sense; that prima facie an absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. In every such case the question is, what upon a fair construction, is the meaning of the instruments ? The converse also holds good and if, on the face of it, an instrument clearly purports to be a mortgage it cannot be turned into a sale by reference to a host of extraneous and irrelevant considerations. Difficulty only arises in the border line cases where there is ambiguity.

This Court in Deokoobai (Smt.) and Ors. v. Shri Keshrichand 1992 MPLJ 106 , has held that if the sale deed got executed as a collateral security for loan, evidence making the position clear can be adduced and Sections 91 and 92 of the Evidence Act would not come in the way. This Court in the said decision placed reliance on earlier Division Bench decision of this Court in Mandas v. Manbai 1972 JLJ 632 .

In the present case, the evidence of plaintiff is not that the transaction was an out and out sale. According to him, he is not aware whether the sale-deed was executed to secure the loan which was taken by defendant from his father. On the other hand, the stand of defendant in his pleading as well as in the evidence is that sale-deed was executed for the security of loan. The note of return of loan money Rs. 1200/- is mentioned in the sale-deed (Exh. D-l), which has been proved by defendant. He has also proved the signature of Ramsevak, who is the father of plaintiff on the margin of the said note. Since after repayment of the loan of Rs. 1200/-, original sale-deed was handed over back to the defendant and this document of sale-deed (Exh. D-l) has been produced from the possession of defendant for all practical purposes, I am of the view that the intention between the parties was that the transaction is not a transaction of sale, but is of loan.

In the present case, two most important circumstances in order to hold that the transaction was only a loan transaction and out sale are that firstly the above said note mentioned herein above in Para 12 of plaintiffs father Ramsevak Pathak, and second the original sale-deed (Exh. D-l) was produced in the Court by defendant from his possession. The Supreme Court in P.L. Bapuswami Vs. N. Pattay Gounder, , in Para 6 while considering the several circumstances, in which one of the circumstance was that the document of Patta was not transferred to the defendant of that case, came to hold that the transaction between the parties was not out and out sale, but was a loan transaction. The Supreme Court by allowing the appeal of plaintiff decreed his suit for redemption of the mortgage. This decision of Supreme Court is applicable in the present case also because in the instant case also defendant/appellant produced the original sale-deed (Exh. D-l) from his possession.

I do not find any merit in the contention of learned Counsel for the respondent/plaintiff that the father of the plaintiff became lunatic and, therefore, whatever has been endorsed by him on the sale-deed (Exh. D-l) acknowledging the receipt of loan cannot be taken into consideration. On going through the evidence of the plaintiff Kailash Pathak (P.W. 1) who was examined on 20-4-1998 it is gathered that 20 years ago his father became lunatic. Thus, according to plaintiff''s own showing his father became lunatic in the year 1978. However, the note of factum of return of loan amount as well as return of original sale-deed to defendant is much earlier as the said note was written by plaintiff''s father on 15-5-1975 and thus it cannot be said that plaintiffs father was lunatic on that date. The substantial question of Law No. (1) is thus answered against respondent by holding that the transaction between the parties was only of loan and the sale-deed (Exh. D-l) is not an out and out sale.

Regarding Substantial Question of Law No. (2):

The plaintiff has come forward with a case that he is having possession on the suit property which is agricultural land. In order to substantiate this pleading he ought to have filed the revenue record in order to demonstrate that after purchasing suit property he is possessing of the same. Since no revenue record has been filed by plaintiff it cannot be said that he is in possession of the suit property. From document (Exh. P- 2) Bhoo Adhikar Avam Rin Pustika, it cannot be ascertained that plaintiff is in possession of the suit property because possession of plaintiff is not endorsed in the said document.

This document only indicates that on account of the alleged sale deed the mutation in the revenue record was effected in favour of plaintiff''s father Ramsevak and accordingly this Bhoo Adhikar Avam Rin Pustika was issued to him. According to me, even if the name of plaintiff ''s father Ramsevak was mutated, it would not confer any right in him because the entry in the revenue record is only a pencil entry and will not confer any substantial right to Ramsevak. This Court in Deokoobai (supra) has also taken the same view. If the plaintiff was possessing the suit property, certainly his possession must have been recorded in the revenue record and since no revenue record has been filed by the plaintiff in order to demonstrate that he is in possession of the suit property, it cannot be inferred that he is possessing the suit property. The plaintiff has come forward with a case that he is possessing the suit property and, therefore, it was for him to prove the factum of possession by filing and proving the necessary revenue record and he cannot take any advantage of the weakness of the defendant/appellant if he has not filed any revenue record. In this context, I may profitably place reliance on the decisions of AIR 1946 59 (Privy Council) , Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526 and Mishrilal v. State of M.P. and Anr. 1986 JLJ 451 . In absence of any revenue record filed by plaintiff to demonstrate his possession on the suit property, I am of the view that he utterly failed to prove his possession and, therefore, his suit for injunction has been illegally decreed by the two Courts below. The substantial question of Law No. (2) is thus answered accordingly.

Resultantly, this appeal succeeds and is hereby allowed. The judgment and decree passed by learned Trial Court decreeing the suit of plaintiff and the judgment and decree of the learned First Appellate Court whereby the appeal filed by defendant has been dismissed are hereby set aside and the suit of plaintiff is hereby dismissed with costs. Counsel fee Rs. 2,000/-, if pre-certified.