The High Court of Chhattisgarh dismissed an appeal against a decree in a suit for possession of land. The court held that the registered sale deed contained no provisions for reconveyance or mortgage, and thus constituted an outright sale, relying on Supreme Court precedents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 177 of 2012
1. Tularam S/o Sonu Aged About 63 Years Koliha Devri, P.S. Basna, P.O. Basna, District Mahasamund, Chhattisgarh.
2. Johan S/o Ganga Ram Aged About 35 Years Koliha Devri, P.S. Basna, P.O. Basna, District : Mahasamund, Chhattisgarh.
3. Ram Lal S/o Ganga Ram Aged About 32 Years Koliha Devri, P.S. Basna, P.O. Basna, District : Mahasamund, Chhattisgarh
4. Sita Bai W/o Mani Ram Aged About 60 Years Koliha Devri, P.S. Basna, P.O. Basna, District : Mahasamund, Chhattisgarh.
Versus
1. Devcharan S/o Trilok Chand Aged About 45 Years Basna, P.S. and P.O. Basna, Tah. Basna, Distt. Mahasamund C.G., Chhattisgarh
2. State Of Chhttisgarh through Collector, Mahasamund, P.S. Civil Lines, Mahasamund, P.O. Mahasamund, District : Mahasamund, Chhattisgarh
---- Respondents
(Cause Title is taken from Case Information System)
| For Appellants |
: Mr. Manoj Paranjpe, Advocate. |
|---|---|
| For Respondent No.1 | : Mr. Y.C. Sharma, Senior Advocate with |
| Shri Hariom Rai, Advocate. | |
| For Respondent No.2/ State | : Ms. Ishwari Ghritlahre, P.L. |
Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board
07.12.2023
1. This first appeal has been preferred under Section 96 of the Code of Civil Procedure against the judgment and decree passed by the learned First Additional District Judge Mahasamund, District Mahasamund, Chhattisgarh in Civil Suit No. 12A/2012 dated 29.09.2012 whereby the civil suit filed by the plaintiff/respondent No.1 was decreed.
2. The facts of the present case are that the plaintiff filed a civil suit for possession of the lands bearing Survey No. 266 ad-measuring 1.33 hectares, Survey No. 287 ad-measuring 0.940 hectares, and Survey No. 289 ad-measuring 0.460 hectares, the total area of 2.730 hectares situated in Village Basna, District Mahasamund inter alia on the ground that the suit
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land was originally recorded in the name of the father of defendant No.1, namely, Sonu S/o Heera. It is further pleaded that Sonu executed a sale deed on 17.03.1958 (Ex. P/1) in favour of the plaintiff after payment of the consideration amount and the order of mutation was also passed on 05.10.2000. It is further stated in the plaint that in the month of December 2000, defendants No.1 to 4 were forcefully dispossessed from property. Thereafter, an application for demarcation was moved and an application under Section 250 of the Chhattisgarh Land Revenue Code was also filed. An order was passed in favour of the plaintiff and against defendants No.1 to 4 by the Tehsildar and the matter traveled up to the Board of Revenue. The Board of Revenue passed the order against the plaintiff thereafter, the civil suit was filed seeking relief of possession. The written statement was filed by defendants No.1 to 4 and the plaint averments were denied. It is stated by defendants No.1 to 4 that the sale deed was executed as security for loan and it was not an outright sale. It is further pleaded that the amount of the loan has already been refunded and therefore, after payment of the entire amount of the loan, the possession has been taken from the plaintiff. It is also stated that defendants No.1 to 4 remained in possession of the suit land since inception. The allegation of fraud was also leveled against the plaintiff with regard to the execution of the sale deed.
3. Learned trial Court framed various issues and held that the suit land was purchased by Sonu through a registered sale deed dated 17.03.1958 and possession was also handed over in favour of Pyarelal, father of defendants No.1 to 4. It is further held that the plaintiff is the owner of the property and in the month of December 2000, the plaintiff has been dispossessed the plaintiff from the property. The learned trial Court also held that the defendants could not prove the fact that the suit was barred by limitation and consequently decreed the suit. Against that judgment, this appeal has been preferred.
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4. Learned counsel for the appellants/defendants No.1 to 4 would submit that the sale deed and possession were never handed over to the plaintiff. He would further submit that as a security, sale deed was executed and after the refund of the entire loan amount, the plaintiff had to execute a fresh reconveyance deed in favour of defendants No.1 to 4 but on account of greed, the plaintiff denied to execute such reconveyance. He would also submit that the suit filed by the plaintiff was time-barred and the possession was never handed over to the plaintiff. He would also argue that the learned Court below has committed an error of law in decreeing the suit preferred by the plaintiff.
5. On the other hand, learned Senior counsel appearing for respondent No.1 would oppose and submit that in the instant sale deed there is no recital with regard to the mortgage and it was an outright sale. He would further argue that such condition should be embodied in the body of the instrument itself but there is no such recital therefore the learned Court below has rightly decreed the suit.
In support of his contention, he has placed reliance on the judgments passed by the Hon’ble Supreme Court rendered in the matters of Chunchun Jha vs. Ebadat Ali and Another , reported in AIR 1954 SC 345 and Prakash (Dead) by LRs. vs. G. Aradhya and Others , reported in 2023 SCC OnLine SC 1025 and on the judgment of this Court rendered in the matter of Jaswant Singh (Dead) through LRs vs. Tijiya Bai (Dead) through LRs and Ors., Second Appeal No. 350 of 2003 . He would refer to (Ex.P/1) the sale deed and submit that there is no such mention with regard to conditional sale.
6. On the other hand, learned State counsel would support the judgment passed by the learned trial Court.
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7. I have heard counsel appearing for the parties and perused the documents placed on record.
8. From a perusal of the registered sale deed (Ex. P/1), it is apparent that no condition is embodied in the body of the instrument. It also appears that it is an outright sale deed with no condition to refund or return money or the land or in respect of the reconveyance of the registered sale deed. Learned trial Court on the basis of documentary as well as oral evidence passed a well-reasoned judgment and decree in favour of the plaintiff.
9. In the matter of Prakash (Dead) by LRs (supra), the Hon'ble Supreme Court has held in paras 30 & 31 as under:-
" 30. A perusal of the aforesaid paras of the judgment shows that the proviso was added in Section 58(c) of the Act vide Act No.20 of 1929, so as to put at rest the conflicting decisions on the issue. A deeming fiction was added in the negative that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.
31. The judgment of this Court in Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243, has also been referred to, which defines the distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to Civil Appeal No. 706 of 2015 redeem remains with the debtor; but a sale with condition of repurchase is not a lending and borrowing arrangement. Proviso to Section 58(c) of the 1882 Act was referred to in the aforesaid judgment to hold that if the condition for re-transfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. The judgment of this Court in Ramlal’s case (supra), relied upon by learned Senior counsel for the appellant, was specifically dealt with and distinguished in paras 34 and 35 thereof in Bishwanath Prasad Case (supra) and the same are extracted below:
“34. In Ramlal v. Phagua this Court having regard to the peculiar fact situation obtaining therein opined: (SCC p. 173, para 18)
"18. In our opinion, agreement to reconvey the property will not ipso facto lead to the conclusion that the sale is nominal and in view of the stand of Defendant 8, as also of the fact that the property worth Rs 700 has been purportedly sold for Rs 400, we are of the considered opinion that the sale deed dated 1-12-1965 did not convey any title to Defendant 8. It is well settled by a
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catena of decisions that the vendor cannot convey to the vendee better title than she herself has."
In the matter of Jaswant Singh (Dead) through LRs (supra), this
Court held in paras 12, 13, 14 to 16 as under:-
"12. The question is, whether the above-stated transaction contained in Ex.D-1, which is in the nature of sale, is a mortgage by conditional sale or it is an outright sale? Both the Courts have concurrently held that it is a mortgage and not an outright sale and decreed the suit of the plaintiffs / respondents No.1 and 2(a) to 2(g) herein.
“(5) The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation. There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. But certain broad principles remain.”
“(9) The document with which we are concerned (Ex. A) is in the following terms and our first duty is to construe the language used and see whether it is ambiguous. (We have paragraphed the document for convenience of construction and have omitted unnecessary words.)
(1) "Rs. 634 principal with interest under a registered rehan bond " (simple mortgage) "dated the 6th May 1927
1 AIR 1954 SC 345
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is justly due ............ by us the executants. Now we further require Rs. 65-6-0 more to meet costs of the suit under section 40." (Bihar Tenancy Act.)
(2) “and at present there is no other way in view rather it seems impossible and difficult to arrange for the money without selling the property let out in rehan " (simple mortgage) "under the above mentioned bond".
(3) "Therefore, we the executants declare .... that we …. sold and vended the properties detailed below on condition (given below) for a fair and just price of Rs. 700......."
(4) "That we set off Rs. 634-10-0 against the consideration money " (torn) "payable under the aforesaid bond in favour of the said vendee and received Rs. 65-6-0 in cash from the said vendee. In this way the entire consideration money was realised from the said vendee."
(5) "and we put the said vendee in possession and occupation of the vended property detailed below and made him an absolute proprietor in our places."
(6) "If we, the executants, shall repay the consideration money to the said vendee within two years ............ the property vended under this deed of conditional sale attached shall come in exclusive possession and occupation of us, the executants."
(7) "If we do not pay the same, the said vendee shall remain in possession and occupation thereof, generation after generation, and he shall appropriate the produce thereof."
(8) "We, the executants, neither have nor shall have any objection whatsoever in respect of the vended property and the consideration money. Perchance if we do so it shall be deemed null and void in Court."
(9) "and we declare also that the vended property is flawless in every way and that if in future any kind of defect whatsoever be found on account of which the said vendee be dispossessed of a portion or the entire property vended under this deed of conditional sale and will have to pay the loss or damage, in that event we, the executants,
(a) shall be liable to be prosecuted under the possession against the said vendee or his
(b) we shall pay the entire consideration money together with loss and damage and interest at the rate of Rs. 2 per mensem per hundred rupees from the date of the execution of this deed till the date of realisation from our person and other properties
(c) and we shall not claim the produce of the vended property for the period of vendee's possession against the said vendee or his heirs and representatives."
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(10) "Therefore we, the executants ......... have executed this deed of conditional sale so that it may be of use in future."
(13) We next turn to the conditions. The ones relevant to the present purpose are contained in Clauses (6) and (7). Both are ambiguous, but we have already said that on a fair construction clause (6) means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there. The necessary consequence of that is that the ostensible sale becomes void. Similarly, clause (7), though clumsily worded, can only mean that if the money is not paid, then the sale shall become absolute. Those are not the actual words used but, in our opinion, that is a fair construction of their meaning when the document is read as a whole. If that is what they mean, as we hold they do, then the matter falls squarely within the ambit of Section 58(c).”
16. Reverting to the facts of the present case in light of the proviso to Section 58(c) of the Transfer of Property Act, 1882 and in light of the principles rendered by Their Lordships of the Supreme Court in Chunchun Jha (supra) followed in Srinivasaiah (supra), examining Ex.D-1, it is quite vivid that the document in question purports to be an absolute sale, as it does not contain any stipulation for treating the sale as mortgage. The agreement of re-conveyance is neither embodied in a separate document, it is said to be agreed orally and it is not recorded in the document as such, in absence of embodiment of such a clause in Ex.D-1, the transaction cannot be regarded as mortgage, as no oral evidence is admissible to contradict Ex.D-1 which is an outright sale transferring title by the plaintiffs in favour of defendant No.1. Therefore, the transaction in question, in absence of embodiment as contained in the proviso to Section 58(c) of the Transfer of Property Act, 1882, cannot be regarded as mortgage and it is held to be an outright sale. Both the Courts below are absolutely unjustified in holding the sale deed dated 31-12-1969 (Ex.D-1) as mortgage in absence of incorporation in the said document Ex.D-1 that it is a mortgage as provided in the said proviso. As such, the finding recorded
2 (2017) 12 SCC 821
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by the two Courts below in this regard is contrary to facts and law available on record."
10. Taking into consideration the instrument (Ex.P/1), registered sale-deed dated 17.03.1958 and the law laid down by the Hon’ble Supreme Court and Coordinate Bench of this Court, in the opinion of this Court, the Court below has not committed any error of law in decreeing the suit of the plaintiff.
11. Consequently, this appeal fails and is hereby dismissed . A decree be drawn accordingly.
No order as to cost(s).
Sd/(Rakesh Mohan Pandey) Judge
Nimmi
2 issues framed by the court
Whether a registered sale deed executed without any recital regarding mortgage or condition for reconveyance constitutes an outright sale or a mortgage by conditional sale.
Whether evidence regarding an alleged oral agreement for reconveyance can override the written terms of the registered sale deed.
Colour shows how this judgement treated each authority
Chunchun Jha vs. Ebadat Ali and AnotherFollowed¶14
AIR 1954 SC 345 · Who else cites this
Prakash (Dead) by LRs. vs. G. Aradhya and OthersFollowed¶6
2023 SCC OnLine SC 1025 · Who else cites this
Umabai v. Nilkanth Dhondiba ChavanReferred¶33
(2005) 6 SCC 243 · Who else cites this
Jaswant Singh (Dead) through LRs vs. Tijiya Bai (Dead) through LRs and Ors.Explained¶39
Second Appeal No. 350 of 2003
Srinivasaiah v. H.R. ChannabasappaFollowed¶66
(2017) 12 SCC 821 · Who else cites this
3 provisions across 3 enactments
Tularam S/o Sonu
Johan S/o Ganga Ram
Ram Lal S/o Ganga Ram
Sita Bai W/o Mani Ram
Devcharan S/o Trilok Chand
State Of Chhattisgarh
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
