A suit for declaration is maintainable without seeking cancellation if the deed is void ab initio, affirming no obligation to demonstrate specific performance of an oral agreement.

1. Heard.

2. ADMIT. Heard finally by consent of the learned counsel for the parties.

3. The appellant in the present second appeal-Santosh Gajanan Vaibhase filed the Regular Civil Suit No. 36 of 2009 for declaration that the respondent herein is not having any right, title and interest in the suit property and for perpetual injunction. The respondent herein also filed a suit namely Regular Civil Suit No. 02 of 2008 claiming declaration that he is the owner of the suit property and the defendant / appellant herein has no right, title or interest in the suit property and also for relief of perpetual injunction. The learned trial Court vide common judgment and decree dated 28/07/2014 dismissed the suit filed by the respondent and decreed the suit filed by the appellant. The respondent feeling aggrieved by the same, preferred Regular Civil Appeal No.71 of 2014 and Regular Civil Appeal No. 72 of 2014. In the Regular Civil Appeal No.71 of 2014 the judgment and decree passed in Regular Civil Suit No. 36 of 2009 was under challenge. Whereas, in Regular Civil Appeal No.72 of 2014 the judgment and decree passed in Regular Civil Suit No.2 of 2008 was under challenge.

4. The District Judge, Akola, vide impugned common judgment and decree dated 05/04/2019 allowed both the appeals and thereby dismissed the suit filed by the appellant i.e. R.C.S. No. 36 of 2009 and decreed the suit of the respondent namely R.C.S. No.2 of 2008 and thereby it is held that the respondent is the owner of the suit land and the defendant/appellant has no right, title and interest in the suit land. The said common judgment and decree dated 05/04/2019 is under challenge in these appeals.

5. The facts in brief are as follows: (The parties are referred to as per their status before the trial Court in Regular Civil Suit No.2/2008 filed by the respondent herein)

6. According to the plaintiff he was in need of money for his daughter’s marriage and therefore, he approached to the defendant to provide a hand loan of Rs.40,000/- which he agreed to provide subject to payment of interest and execution of a sale deed showing amount of consideration as Rs.60,000/-.

7. It is further the case of the plaintiff that after receiving amount of Rs.40,000/- he accordingly executed a nominal sale deed of 3 acres of land showing total consideration as Rs.60,000/-, which includes Rs.40,000/- and interest thereon. It is stated that the possession was never delivered and the possession was with the plaintiff. It is stated that it was agreed that the sale deed shall be treated as cancelled after payment of Rs.60,000/- i.e. including interest or if required the defendant shall execute the reconveyance deed. It is also pleaded that the sale deed is nominal and it is void ab initio therefore, the question of reconveyance does not arise. The plaintiff has further pleaded that the defendant started giving threats to the plaintiff and as the defendant was trying to alienate the suit property, the suit was filed.

8. The defendant/appellant filed his written statement opposing the suit thereby denying the allegations made in the plaint. It is the case of the defendant that the sale deed was not nominal, but it was actual transaction of sale.

9. The defendant in R.C.S. No.2 of 2008 filed a suit for declaration and permanent injunction against the plaintiff in the said suit claiming thereby that he is the owner and in possession of the suit land by virtue of registered Sale Deed dated 12/05/2006. It is his further case that the defendant in R.C.S.