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2003 Supreme(Bom) 1058
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Kharche S.T., J.
Gulamuddin Hisamuddin through L.Rs. others .... Appellants.
Versus
Mohd. Bashiruddin Mohd. Saifuddin another.... Respondents.
Second Appeal No. 122 of 1990, decided on 12-9-2003.
Advocates appeared :
J.J. Chandurkar, for appellants.
Nitin Vyawahare, for respondent No. 2.
Headnote:Civil Procedure Code, 1908 - Order VIII, Rule 5 - Admissi- bility of records, 30 years old. - Where the document in question is 30 years old and it was duly proved by plaintiff and was produced from proper custody and thus its contents have not been denied specifically by defendants is perfectly admissible in evidence.
Transfer of Property Act, 1882 - Section 54 - Acceptance of sale transaction. - Once it is accepted that notification not issued mala fide or with oblique motives, the action cannot be held to be bad. In absence of any evidence it is not possible to accept that sale transaction is not in accordance with law.
Transfer of Property Act, 1882 - delivery of possession and therefore burden got shifted on defendants to show that they had title to suit house or the defendant 1 was in lawful possession of suit house after date of delivery. Section 52 - Suit for posse- ssion of title. - As per recitals the possession has been delivered on same date of agreement. The transfer of suit house in favour of plaintiff was complete by
Transfer of Property Act, 1882 - Section 52 - Scope of doctrine of lis pendens. - Section 52 imposes prohibition on transfer or otherwise dealing of any property during pendency of suit provided the conditions laid down in section are satisfied. Transaction of sale between defendants 1 and 2 by virtue of registered sale deed is hit by doctrine of lis pendens.
Evidence Act, 1872 - Section 90 - Admissibly of 30 years old document as evidence. - The document in question is 30 years old and was duly proved by plaintiff and it was produced from proper custody therefore its contents have not been denied specifically by defendants, it is perfectly admissible one.
CONSTITUTION OF INDIA - Article 226 - Exercise of juris- diction under - Interference with concurrent findings of fact - Sale - Both Courts below recorded finding of fact that parties acted on terms and conditions mentioned in sale deed - No interference warranted with concurrent findings of fact recorded by Courts below. - Both the Courts below were of the opinion that the plaintiff has established his title on the strength of the sale-deed dated 25.3.1947 as well as on considering the attending circumstances like the rent-note and the receipt of the notice dated 15.4.1966 from the Gram Panchayat calling upon the plaintiff to stop the construction of the wall which was started without the permission of the Gram Panchayat. Both the Courts below have recorded finding of fact that the parties acted on the terms and conditions mentioned in the sale- deed dated 25.3.1947 and there is no reason for the High Court to interfere into the concurrent findings of facts recorded by both the Courts below. [Gulamuddin s/o Hisamuddin v. Mohd. Bashiruddin Mohd., Saifuddin and another, 2004
2. Relevant facts are as under :
Mohammad Saifuddin instituted regular civil suit for possession on the strength of his title against his own brother original defendant No. 1 and the subsequent purchaser original defendant No. 2. It is contended that the plaintiff had purchased the suit premises from one Abdul Wahab on 25-3-1947 by virtue of unregistered sale-deed (Exh. 37) and the erstwhile owner had delivered the possession of the suit house to him on the same day. It is contended that one Jalaluddin was inducted as a tenant in the suit house on behalf of Mohammad Saifuddin and the Rent Note dated 27-9-1972 was also executed by the tenant. It is contended that original defendant No. 1 Naruddin took forcible possession of the suit house from the tenant in the month of May 1974 and thereafter he had executed the sale-deed dated 4-2-1976 in favour of defendant No. 2 Gulamuddin during the pendency of the suit. The plaintiff Saifuddin died during the pendency of this appeal and his legal heirs were brought on record.
3. The original defendant No. 1 Naruddin did not contest the suit and the same proceeded ex parte against him.
4. The defendant No. 2 combated the claim of the plaintiff by filing written statement and contended that the sale-deed dated 25-3-1974 and the Rent-Note are fabricated documents. He contended that defendant No. 1 was in continuous possession of suit house since 28 years and he sold it to him. He denied the title of the original plaintiff to the suit house and has come up with a case that he had purchased the suit house from defendant No. 1 on 4-2-1976 by virtue of the registered sale-deed and, therefore, he has become the exclusive owner of the suit house.
5. On the pleadings of the parties, the trial Court framed the issues, considered the oral and documentary evidence adduced by the parties in support of their contentions and recorded the findings that the plaintiff is the owner of the suit house, that he had let out the suit house to Jalaluddin and, as such, he is entitled to the possession on the strength of proved title. The trial Court also held that defendant No. 1 took illegal possession of the suit house sometime in May 1974 in absence of Jalaluddin and thereafter defendant No. 1 gave its possession to defendant No. 2. The trial Court negatived the contention of defendant No. 1 that he is the owner of the suit house and that defendant No. 2 has purchased the same from defendant No. 1 by virtue of agreement of sale and was in possession of the suit house on account of part performance of the agreement of sale. Consistent with these findings, he decreed the suit for possession and direct the defendants to deliver the possession to the plaintiff.
6. The unsuccessful defendant No. 2 carried an appeal to the District Court. The Appellate Court confirmed the findings and the conclusions drawn by the trial Court and dismissed the appeal on 2-1-1990. It is this judgment and decree of the Appellate Court which is under challenge in this appeal. The original defendant No. 2 appellant died during the pendency of this appeal and his legal heirs have been brought on record.
7. Mr. Chandurkar, learned Counsel for the original defendant No. 2 contended that the unregistered sale-deed dated 25-3-1947, which is said to have been executed by Abdul Wahab in favour of the original plaintiff, is not admissible in evidence and both the courts have committed an error of law in drawing the conclusion that the plaintiff has established
