IMPORTANT POINT
Section 123 of the Transfer of Property act, 1882 and section 68 of Indian Evidence Act, 1872 do not apply to sale deed which is governed by section 54 of the TP Act.

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the defendant against the final judgment and order dated 11/12.10.2012 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal No.304/1997 whereby the Single Judge of the High Court allowed the appeal filed by the respondent herein and reversed the judgment/decree dated 26.08.1996 passed by the 3rd Additional District Judge, Nagpur in Regular Civil Appeal No.152/1989 which arose out of judgment/decree dated 31.01.1989 passed by 3rd Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.1210/1985, which had dismissed the respondent’s civil suit.

3) In order to appreciate the short controversy involved in the appeal, few relevant facts need mention hereinbelow.

4) The appellant is the defendant whereas the respondent is the plaintiff in a civil suit out of which this appeal arises.

5) The dispute relates to plot No.12 of field No.13/3, P. H. 44 situated in Mouza Parsodi Tahsil, District Nagpur admeasuring 1625 sq.ft. (hereinafter referred to as the “suit land”).

6) The suit land originally belonged to one Housing Co-Operative Society called – “Subhash Nagar Gruha Nirman Sahakari Sanstha Limited, Nagpur” (hereinafter referred to as "Society”). The respondent purchased the suit land from the Society vide registered sale deed dated 29.12.1981 and was, accordingly, placed in possession of the suit land by the Society.

7) In March 1985, it was noticed by the respondent that the appellant had encroached upon the suit land owned by him and erected a kacha hut on one portion of the suit land without any authority. This led the respondent to serve legal notice dated 22.04.1985 on the appellant asking her to remove the hut, which was illegally erected by her on the suit land. Since the appellant did not remove the hut, the respondent filed a suit being Civil Suit No.1210/85 in the Court of Civil Judge, Junior Division, Nagpur against the appellant claiming possession and mesne profits in relation to the suit land.

8) The suit was founded essentially on the allegation, inter alia, that the respondent is the owner of the suit land having purchased the same from the Society by registered sale deed dated 29.12.1981(Ex.P-31). It was alleged that the respondent was placed in possession of the suit land pursuant to the sale deed. It was alleged that the appellant, in March 1985, un-authorisedly entered into the suit land and erected one hut on one portion of the suit land and hence, the suit is filed by the respondent seeking possession of the suit land and also claiming the mesne profits from the appellant.

9) The appellant filed written statement and denied the respondent's claim. According to her, the suit land was allotted to one Dhondiba Lodhi by the Society, who then constructed his house on the land and on his death, his wife - Hirabai became its owner. It was then averred that Hirabai entered into an agreement with the appellant on 22.05.1972 to sell the suit land and pursuant to the agreement, was placed in possession of the suit land. It was averred that since then the appellant continued to remain in possession of the suit land without any interruption from anyone and has accordingly acquired ownership of the suit land by virtue of she being in adverse possession of the suit land. This, in substance, was her defense.

10) The Trial Court framed the issues and parties adduced their evidence. By judgment/decree dated 31.01.1989, the Trial Court dismissed the respondent's suit. It was held that, firstly, the respondent failed to prove the sale deed (Ex.P-31) inasmuch as the sale deed had some kind of discrepancies and also no attesting witness was examined; secondly, the appellant was in possession of the suit land since 1972 and hence perfected her title over it by adverse possession; thirdly, the dispute, which is the subject-matter of civil suit, pertained to the business of the Society and hence covered by Section 91 of the