Admissibility of oral evidence under Sections 91 and 92 of the Evidence Act to demonstrate that a document was never intended to be acted upon and was executed as a sham.

JUDGMENT

Pushpa V Ganediwala, J. - Heard.

2. This is the defendant''s appeal against the Judgment and decree dated 31/10/2003 passed by the Court 3rd Additional District Judge, Akola in Regular Civil Appeal No.165/1999, whereby the learned First Appellate Court partly allowed the appeal by setting aside the Judgment and decree dated 09/04/1999 of Civil Judge, Junior Division, Patur in Regular Civil Suit No.41/1991 and allowed the plaintiff to execute the decree of possession against the defendant and also allowed the plaintiff to initiate a proceeding for claim towards mesne profit.

3. While admitting this appeal on 03/06/2008, this Court framed the following substantial questions of law.

1) Whether the first appellate Court was right in holding that the party is prevented from leading evidence by virtue of provisions contained in Sections 91 and 91 of the Evidence Act, even if the plea was only to the effect that particular document was not intended to be acted upon ?

2) Whether it was necessary for the defendants to have instituted a suit for specific performance of reconveyance of the field in his favour by virtue of an agreement Exh.137 ?

4. Heard Shri C. A. Joshi, learned counsel appearing on behalf of the appellants and Shri B. N. Mohta, learned counsel appearing on behalf of respondents. The parties hereinafter referred to as per their original status in the suit.

The facts in brief, necessary to decide the present appeal, are as under :-

5. The plaintiff filed a suit for declaration and permanent injunction on the basis of sale deeds dated 29/04/1974 and 31/05/1974 contending that he is the owner of the suit land i.e. Field Survey No.83/4, 2 hectares 81 R of village Tondi, Tq. Patur, Dist. Akola and is in possession thereof. It is the specific defence of the defendant that the abovesaid sale deeds were nominal and were executed by way of security towards loan obtained by the defendant from plaintiff, he executed those sale deeds. The defendant claimed his possession of the suit property even after execution of sale-deeds. As he could not pay interest on the loan amount, therefore, he delivered possession to the plaintiff during the period from 1976-1977 to 1988-1989.

6. By way amendment the plaintiff added pleadings with regard to forcible possession obtained by the defendant during the pendency of the suit and the plaintiff also added relief for possession of the suit property.

7. On the basis of pleadings of the parties, necessary issues were framed and evidence was recorded. The learned Trial Court dismissed the suit vide Judgment dated 09/04/1999 and gave findings that the aforesaid sale deeds were nominal and possession of the suit property was not delivered by defendant to the plaintiff.

8. The plaintiff carried the Judgment and Decree of the dismissal of the suit before the First Appellate Court in R.C.A. No.165/1999. The Appellate Court partly allowed the appeal by setting aside the Judgment and decree of the Trial Court and directed execution of the possession of the suit property in favour of plaintiff. The First Appellate Court held that no evidence could not have been allowed to be led to prove that the aforesaid sale deeds were nominal in view of the provisions of Sections 91 and 92 of the Evidence Act and Exh.137 cannot be considered for want of registration.

9. The defendant carried the impugned Judgment and decree of the First Appellate Court in the second appeal and the aforesaid substantial questions of law have been framed by this Court.

10. Shri Joshi, learned counsel appearing on behalf of appellant submitted that the plaintiff has failed to prove the sale deeds dated 29/04/1974 and 31/05/1974 and the First Appellate Court committed an error in relying on those sale deeds which were nominal documents executed for the purpose of security of loan of Rs.2,500/-. The learned counsel in support of his submissions relied on the Judgment of Hon''ble Apex Court in the case of Gangabai Vrs. Chhabubai, (1982)