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2011 Supreme(Bom) 141
2011 (3) ALL MR 39
High Court of Bombay at Nagpur
R.M. SAVANT
Ananda Sonji Wakode
Versus
Pandurang Shamrao Varilal
SECOND APPEAL NO. 168 OF 1995
Decided on : 08-02-2011
For the Appellant: S.A. Mohta, Counsel.
For the Respondent: V.R. Chaudhary, Counsel.
Headnote:Specific Relief Act, 1963 - Section 31-Transfer of Property Act, 1882, Section 54-Suit for declaration-Plaintiff alleged that defendant trying to disturb possession on basis of sale deed-Defendant got document executed from plaintiff on basis of misrepresentation-Cancellation of sale deed not required as it is not real transaction-Suit for declaration that said sale deed sham and nominal, maintainable under Section 31 of Act, 1963.-In the context of the question of law which has been framed in the above Second Appeal it is required to be noted that both the Court below have concurrently held that the sale-deed dated 21.1.1989 was sham and nominal. Both the Courts have also concurrently held that plaintiff was in possession and continued to be in possession post execution of the sale-deed. Both the Courts below have recorded the said finding on the basis of the evidence which was recorded as also the attendant circumstances. In so far as the sale-deed dated 23.1.1989 was concerned in the teeth of the rival contentions the said document can be said to be suffering from a misrepresentation as regard its character. The plaintiff has executed a said document on the premise that it was to be a security for the loan which he has taken from the defendant of Rs. 4,000/-. Since it was the cause of the defendant that it was an out and out sale the defendant got the said document executed from the plaintiff on the basis of the misrepresentation and therefore the said document can be said to be void, as the parties were not ad idem as regards the character of the said document. As can be seen from the judgments of the Courts below both the Courts below have concurrently held that the plaintiff has continued to be in possession of the property in question. The plaintiff was therefore entitled to file a suit for declaration, in view of the fact that the defendant was trying to interfere with the plaintiff’s possession on the basis of the said sale-deed it was therefore not necessary for the plaintiff to seek declaration of his title or for cancellation of the said sale-deed dated 23.1.1989. A sham or nominal sale-deed need not be set aside or cancelled, only if it is a real transaction is has to be set aside or canceled. The plaintiff was not claiming any relief on the basis of the said sale-deed but was only seek a declaration that the same was nominal and sham. As held by the Apex Court in Prem Singh and others (supra) plaintiff was entitled to file a suit for declaration that the sale-deed was sham and nominal and such a suit is still maintainable under Section 31 of the said Act.
This appeal challenges the judgment and decree dated 28th February 1995 passed in Regular Civil Appeal No. 65 of 1994 by which the judgment and decree passed by the Trial Court in Regular Civil Suit No. 64 of 1993 came to be confirmed.
2] The above appeal has been admitted on the following substantial question of law which is mentioned in the order dated 24th February 1997:
Whether the suit filed by the plaintiff could be said to be a tenable suit, in view of the fact that the plaintiff had not claimed therein the setting aside of the sale deed which he had executed in favour of the defendant and as such what is the real scope of Section 31 of the Specific Relief Act?
3] The facts in brief can be stated thus:
The plaintiff claims to be the owner and in possession of the land bearing Survey No. 31/1 Gat No. 151 admeasuring 1 Hectre 21 Ares out of the larger portion of 2 Hectre and 93 Ares situate at village Gunj, Taluka Sindhkhed Raja. It was the case of the plaintiff that he was in need of Rs. 5000/-in January 1989 and he therefore approached the defendant who is a money lender. The defendant insisted for the execution of a nominal sale deed and so on his insistence the document of sale deed came to be executed on 23.01.1989. It was the case of the plaintiff that he did not part with the possession of the suit property in favour of the defendant. It was further his case that he also paid interest to the defendant from time to time. It was his case that since there was a dispute between the plaintiff and defendant in the year 1992 as regards interest, the defendant started obstructing the possession of the plaintiff in respect of the suit property. The plaintiff was therefore constrained to file the said suit for declaration that the said sale deed dated 23.01.1989 be declared as sham and nominal and the defendant be restrained from obstructing or interfering with the possession of the plaintiff.
4] Defendant in his Written Statement contended that the transaction in question was an out and out sale deed which was executed by the plaintiff in favour of the defendant. It was the case of the defendant that as plaintiff was in need of money for purchasing some other land, mutation was not carried out in pursuance of the said sale deed. It was his case that plaintiff taking disadvantage of the same had filed the instant suit. It was the case of the defendant that pursuant to the sale deed he was put in possession of the suit property. The trial Court on the basis of the pleadings of the parties framed the relevant issues. In so far as the present appeal is concerned issue Nos. 1, 2,, 3, 5 and 7 are material and are reproduced herein as under:
Issues and Findings
1] Does plaintiff prove that he obtained hand loan of Rs. 5000/-by executing nominal sale deed in favour of defendant on 23.01.1989? Yes proved.
2] Does he prove that the defendant had agreed to execute reconveyance deed by accepting a cash of Rs. 5000/- and interest thereon @ 12% per annum? Yes proved.
3] Does he prove that he is in possession of suit land since beginning? Yes proved.
5] Is suit claim barred by limitation? No.
7] Is plaintiff entitled to get declaration that sale transaction dated 23.01.1989 was nominal and sham and not binding upon him? Yes.
The above issues were therefore answered by the trial Court in favour of the plaintiff. The Trial Court recorded a finding that the sale deed dated 23.01.1989 was nominal, as well as recorded a finding that plaintiff continued in possession of the suit property. Trial Court also held that the suit as filed was within limitation.
5] Being aggrieved by the decree of the said Regular Civil Suit No. 64 of 1993 the defendant filed Regular Civil Appeal No. 65 of 1994. The First Appellate Court confirmed the findings of the trial Court as regards the sale deed dated 23.01.1989 being nominal and as regards the possession of the plaintiff. The First Appellate Court interalia took into consideration the fact that even
