Dismissed

Kesharbai Ghanshyam Mule v. Wanchalabai Vitthalrao Jadhav

Bombay HC1 Feb 2011SA/627/2010

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of a suit for reconveyance of property. The High Court, Bench at Aurangabad, upheld the lower courts' findings that the parties executed an outright sale deed. The appellant failed to prove an oral agreement for reconveyance within ten years, and the suit was also barred by limitation. The appeal was dismissed.

What did the court decide?

The second appeal was dismissed, confirming the sale deed and dismissing the claim for reconveyance.

Kesharbai Ghanshyam Mule Vs Wanchalabai Vitthalrao Jadhav — Specific Performance | Bombay HC (2011)

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sa627.10

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE, BENCH AT AURANGABAD

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SECOND APPEAL NO.627 OF 2010

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Office Notes, Office Coram: Shrihari P. Davare, J. Memoranda of Coram, appearances, Court's Date : 01.02.2011. orders or directions and Registrar's orders.

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Coram: Shrihari P. Davare, J.

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Heard Shri M.M.Patil Beedkar, learned counsel for the appellant and Shri N.P. Bangar, learned counsel for the respondent.

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Unsuccessful plaintiff has filed present second appeal, since he has lost before both the lower courts, challenging the judgment and order dated 18.12.2009 rendered by learned District Judge-1, Beed, dismissing Regular Civil Appeal No.174 of 2007 which was preferred by the plaintiff, assailing the judgment and decree dated 27.7.2007 passed by learned Civil Judge,

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Senior Division, Beed, dismissing R.C.S. No. 3 of 2006. The parties are hereinafter referred to as per their original status i.e. Plaintiff and Defendant.

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The plaintiff is the mother of defendant and the defendant is daughter of the plaintiff. Plaintiff filed aforesaid suit for reconveyance of the suit property. It is the case of the plaintiff that she is the owner of the land bearing Gat No. 230, admeasuring 9 hectare 13 Are, situated at Mouje Mouj, Taluka and District Beed . Plaintiff was in need of money and, therefore, she asked defendant to pay the same, but the defendant asked some security and, therefore, plaintiff executed sale deed of the suit property in favour of the defendant, with an agreement that the plaintiff shall repurchase the property on payment of Rs.45000/= and, accordingly, the sale

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deed was executed for Rs.47,000/=. It is also the case of the plaintiff that the time of ten years was agreed for reconveyance and, accordingly, the same was executed. Thereafter, the plaintiff requested the defendant to reconvey the property after receiving Rs.45,000/-, but the defendant avoided, contending that the plaintiff had executed outright sale deed in favour of the defendant and flatly refused the request of the plaintiff and hence, plaintiff issued notice to the defendant asking her to reconvey the property in favour of the plaintiff and since the defendant did not comply with requisitions in the said notice, the plaintiff filed suit.

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The defendant appeared in the suit and filed her written statement and resisted the claim of the plaintiff, contending that the plaintiff was in need of sum of Rs.1.50 lakhs and,

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therefore, defendant paid the said amount to the plaintiff as sale price of the suit property and the plaintiff executed outright sale deed in respect of the suit land in favour of the defendant. However, in order to curtail the registration expenditure, value of the sale deed was shown to be Rs.47,000/=. After execution of the sale deed, the defendant is put in possession of the suit land and since then she is cultivating the same. It is the contention of the defendant that entire revenue record confirms the said position. Accordingly, it is the case of the defendant that she is the owner and possessor of the suit property and the plaintiff has no concern with the same. It is the contention of the defendant that there was no any oral agreement about reconveyance and consequently, she prayed for dismissal of the suit.

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After considering rival submissions and the evidence adduced and produced by the parties, learned trial court came to the conclusion that there was no agreement for reconveyance between the parties and that the suit also was barred by limitation, and also came to the conclusion that the transaction between the parties was outright sale deed and consequently, dismissed the suit, by the judgment dated 27.7.2007.

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Being aggrieved and dissatisfied by the said judgment and decree of the trial court, the plaintiff preferred R.C.A. No.174 of 2007 before the learned District Court, Beed. However, after considering the rival submissions, learned District Judge-1, Beed, confirmed the judgment and decree passed by the trial court and dismissed the said appeal, by judgment and

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order dated 18.12.2009. Since the plaintiff lost before both the lower courts as aforesaid, she preferred present second appeal, challenging both the dismissals.

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Learned counsel for the plaintiff canvassed that although the defendant contended that she paid price amount of Rs.1.50 lakhs towards sale deed, the sale deed reflects the price amount of Rs.47,000/= and accordingly, defendant failed to prove payment of price amount of the sale deed and hence, the said sale deed cannot be construed as complete document and consequently, defendant cannot be construed as owner and possessor of the suit land, relying upon provisions of Section 54 of the Transfer of Property Act, 1882.

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In the said context, learned counsel for the defendant invited my attention to the discussion

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and observations made by the learned trial court in paragraph 10 of its judgment, that although defendant has paid Rs.1.50 lakhs as sale price, amount of Rs.47,000/= is shown in the sale deed to avoid the registration expenditure. Moreover, learned counsel for the defendant also invited my attention to paragraph 19 of the judgment of the first appellate court, wherein it is observed that nothing adverse could be elicited from cross examination of the defendant except that she could not prove that she paid Rs.1.50 lakhs and not Rs.45,000/= or Rs.47,000/=. But, that itself will not mean that the sale transaction executed was not genuine sale deed and the trial court rightly appreciated all these facts and evidence on record and the conclusion drawn by the trial court is legal and proper. It is also observed by the trial court as well as first appellate court that the suit filed by plaintiff is barred by limitation.

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Considering the judgment and decree of the trial court, as well as first appellate court, I do not find any error therein. Moreover, it is pertinent to note that the plaintiff failed to prove any agreement between her and the defendant in respect of reconveyance of the property by defendant in favour of the plaintiff.

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Hence, having comprehensive view of the matter, there is no substance in the arguament advanced by the learned counsel for the plaintiffappellant and the sale deed in question will not be hit by Section 54 of the Transfer of Property Act, as canvassed by the learned counsel for the plaintiff.

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In the circumstances, no substantial question of law could be formulated and hence, no interference is called for in the impugned

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judgments, in the second appeal and the same, therefore, deserves to be dismissed.

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In the result, second appeal, which is sans merits, stands dismissed.

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(SHRIHARI P. DAVARE, J.)

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pnd/sa627.10

Kesharbai Ghanshyam Mule v. Wanchalabai Vitthalrao Jadhav

Case brief

What is this about?

What did the court decide?

Kesharbai Ghanshyam Mule v. Wanchalabai Vitthalrao Jadhav

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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