DNYANOBABHAURAO SHEMADE Vs. MAROTI BHAURAO MARNOR

JUDGEMENT

(1.) In this appeal by special leave, the appellant-plaintiff has brought in challenge the Judgment and Order rendered by a learned single Judge of the High Court of Judicature of Bombay at Aurangabad in Second Appeal No. 188-A of 1982. The High Court, by the impugned judgment, has allowed the appeal of respondent-defendant and has dismissed the appellant's suit. In order to appreciate the grievance of the appellant against the impugned judgment, a few introductory facts are required to be noted at the outset.

(2.) The appellant had purchased 2 acres and 33 gunthas of agricultural land from Survey No. 23/AA situated at village Shekta in Gevrai Taluka of Beed District in State of Maharashtra from one Dagdu in the year 1967. It is his case that as he was in need of money and when the respondent-defendant advanced him Rs. 1,000/- he got executed a sale deed from the appellant for Survey No. 21/AA of the same village on 29th January, 1973 as a security. After some time, the appellant was in a position to return the said amount with interest to the respondent-defendant. Both, therefore, came to Gevrai for re-executing the sale deed in respect of Survey No. 21/AA. According to the appellant, at that time respondent-defendant demanded Rs. 500/- more and he was not prepared to reexecute the sale deed in respect of Survey No. 21/AA unless and until Rs. 500/- more were paid to him by the appellant. As the appellant was not having Rs. 500/- more, the respondent asked the appellant to execute a sale deed in respect of suit field Survey No. 23/AA as a security towards the amount of Rs. 500/-. The appellant had, therefore, executed the said sale deed and then only the respondent had re-executed the sale deed in respect of Survey No. 21/AA in favour of the appellant. It is the case of the appellant that despite the execution of the sale deeds by the appellant in favour of respondent-defendant in connection with Survey Nos. 23/AA and 21/AA both the lands remained with him as the sale deeds were nominal. As the respondent tried to interfere with the appellant's possession of Survey No. 23/AA, the appellant filed regular Civil Suit No. 51/76 on 10th February, 1976 in the Court of Civil Judge, Junior Division at Gevrai for a declaration that the sale deed dated 31st October, 1975 bearing No. 2159 regarding Survey No. 23/AA was null and void. The appellant also prayed for permanent injunction restraining the respondent-defendant from interfering with the plaintiff's possession over the said field. Pending the suit an interim injunction was granted in favour of the appellant.

(3.) The respondent resisted the suit by filing written statement at Exhibit-43. His case was that he had purchased Survey No. 21/AA to the extent of 4 acres for Rs. 2,500/- from the plaintiff and the possession was delivered to him. That it was a contract of sale and was not towards the security of the amount. That after some days he purchased 5 acres and some gunthas of land from eastern side of Survey No. 23/AA from one Tulsiram. That portion is adjacent to the suit field. That there was an oral agreement between the plaintiff and himself, that the plaintiff would execute a sale deed in respect of suit field being some other part of Survey No. 23/AA in favour of the respondent and in its exchange respondent would execute a sale deed in respect of Survey No. 21/AA in favour of the appellant. That after the said oral agreement both came to Gevrai and exchanged their lands by executing the sale deeds in favour of each other. He was, therefore, the owner and in possession of the suit field.