Advocates:
['V D SALUNKE', 'V D GUNALE', '', 'R', 'TO SERVED', 'R- DIED']

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

SECOND APPEAL NO. 385 OF 2009

Sopan s/o Vaijoba Bhande

.. APPELLANT

VERSUS

Vitthal s/o gunda Gojame

(deceased thorugh LRs)

.. RESPONDENTS

WITH

SECOND APPEAL NO. 386 OF 2009

Sopan s/o Vaijoba Bhande

.. APPELLANT

VERSUS

Vitthal s/o Gunda Gojame

( deceased through LRs)

.. RESPONDENTS

Mr. Arun Dalal, Advocate holding for Mr. V.D. Salunke, Advocate for the

appellant.

Mr. S.S. Deo, Advocate holding for Mr. V.D. Gunale, Advocate for respondent

no. 1/3.

=====

2

CORAM : R. M. BORDE, J.

DATE : 6

th January, 2010.

PER COURT :

1

These are the appeals by original defendant raising exception to the

judgment and decree passed in Regular Civil Appeal no. 132/2007 and

Regular Civil Appeal no. 108/2008 by the District Judge – 1, Latur on 4-2-2009.

2

Respondent / original plaintiff instituted a suit claiming declaration of

ownership and perpetual injunction in respect of agricultural property.

Plaintiff during continuance of litigation sought leave to amend the plaint

and also requested for execution of reconveyance deed by defendant on

acceptance of the amount alleged to have been paid by him. Contention

of the plaintiff is that he is owner of land survey no. 16/A (Gat no. 30)

admeasuring 4 acres and 50 R situate at village Nandgaon, Tq. Ahmedpur,

Dist. Latur. Plaintiff claims to have secured loan to the extent of Rs.4,000/-

from the defendant for performing marriage of his daughter and by way of

security for the loan advanced, a nominal sale-deed was got executed by

defendant on 4-5-1977. It is his contention that it was agreed between the

parties that the possession of the property shall remain with the plaintiff.

3

According to the plaintiff, he is and was ready to pay the loan amount

alongwith interest at the rate of 12% per annum, however, defendant was

not ready to receive the amount. His intention was to grab the suit land and

as such, he started making obstruction to the possession of plaintiff. Plaintiff,

as such, was constrained to approach the civil court seeking relief as stated

above.

3

Defendant appeared and resisted the suit by filing written statement.

Defendant denied the contention as regards the nature of transaction being

nominal one. Defendant has denied the contention raised by plaintiff that

the transaction in fact was in respect of advancement of loan and the

execution of sale-deed was by way of security for the loan advanced.

Defendant as such prayed for dismissal of the suit.

4

Trial court after receiving evidence led by the parties reached

conclusion that the plaintiff has established his possession over the suit

property, however, he has not established his case for granting declaration in

respect of ownership. Trial court thus while decreeing the suit partly has

clamped restrain order against the defendant retraining him from interfering

the possession of the plaintiff over the suit property. There were two appeal

4

presented by plaintiff and defendant respectively raising exception to the

judgment and decree passed by the trial court First appellate court while

dealing with the appeals has dismissed the appeal presented by the

defendant, however, has allowed the appeal presented by plaintiff and

granted declaration in favour of the plaintiff holding that the transaction is

nominal one.

5

I have perused the judgments recorded by both the courts below.

I am not inclined to admit the appeals. Both the courts have recorded

concurrent findings to the effect that the plaintiff has established his

possession over the suit property and in my view this is the most important

aspect which supports the claim of the plaintiff as regards the nature of

transaction being nominal one. Inspite of execution of the instrument of sale

the possession of the property remai