ATMARAM Vs. BANARASIBAI

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 16th February, 2001 in Regular Civil Appeal No. 120/1999 passed by the learned 4th Additional District Judge, Akola, setting aside the judgment and decree dated 30.3.1999 passed by 3rd Joint Civil Judge, Junior Division, Akola in Regular Civil Suit No. 664/1992, the present Second Appeal was preferred by the unsuccessful original defendant.

(2.) The respondent/original plaintiff -Smt. Banarasibai instituted a suit for permanent injunction against the appellant/original defendant of the suit land, on 18.11.1992. In the suit, she pleaded that she had purchased the suit field/property belonging to the appellant in a village which was located 40 kms. away from Akola town and that after the purchase, when her son had gone to the field on 11.10.1992, the appellant had threatened him not to enter the field and, therefore, a notice dated 13.10.1992 (Exh.72) was issued to him. In the notice, as well as in the suit, it was stated that the respondent/plaintiff was in possession of the suit land for the last three years and, as such, her possession could not be disturbed, she being lawful owner of the suit property. The property was duly mutated in the revenue records in her name and, thus, she prayed for permanent injunction. The appellant having appeared, filed written statement and opposed the suit and submitted that the appellant was having a fair price shop and three years before the alleged sale -deed, there was a transaction of taking loan since the appellant was in need of money for running the shop as his crops had failed in those years. The transaction of taking loan on interest and repaying back and again taking loan, had taken place. Insofar as the sale deed is concerned, it was a mortgage that he was executing the mortgage deed, but the same turned out to be the ultimate sale deed. The sale deed was for security of loan which was also paid by the appellant. The respondent -money lender has been lending money on higher interest to the fair -price shopkeepers and agriculturists and, therefore, the transaction was by way of security of loan and not the real transaction of sale. The respondent/plaintiff was never in possession of the suit property and in connivance with the revenue officials, she managed to enter her name as the purchaser but possession was never given. Since she was not in possession, the question of issuing temporary injunction did not arise. The appellant therefore, prayed for dismissal of the suit.

(3.) In support of the Appeal, Mr.V.M. Moon, learned counsel for the appellant vehemently argued that the transaction was out and out transaction of loan, because the respondent was a money lender lending money to the people on exorbitant rate of interest and it is out out of money lending transaction only, the sale deed was executed, on the pretext of executing a mortgage deed by way of security of loan that was taken by the appellant. According to him, the loan was completely repaid and sale deed was never to be acted upon and was in fact not acted upon, inasmuch as the possession was never given to the respondent/plaintiff who resides at Akola town, which is at a distance of 40 kms. from the location of the field and not only that DW 3 Rameshwar has been examined by the appellant to prove the fact that the respondent/plaintiff is a money lender and, in fact, in the case of Rameshwar almost during the same time i.e. on 24.1.1991 six months before the sale deed in question, Rameshwar had taken a loan and an agreement was executed for sale of 3.59 H for consideration of Rs. 75,000/ - in favour of respondent. According to him, Rameshwar entered the witness box and his evidence went unchallenged on material particulars. As to business of money lending done by the respondent/plaintiff, inviting my attention to Exh. 87, copy of the suit being Suit No. 169/1993, Mr. Moon contended that ultimately on 2.8.1995 after Rameshwar paid the entire amount with interest, by filing a withdrawal pursis (Exh.89) the said suit was withdrawn, by way of out of court settlement. But then, according to Mr. Moon, the fact that the respondent had been doing money lending business and the sale deed in question is of the same period as in the case of Rameshwar and, therefore, the appellant has clearly proved his case beyond all probabilities about the money lending business of respondent. According to Mr. Moon, the respondent never asserted that he was agriculturist or agricultural labourer in order to purchase the suit property and, on the contrary, her son admitted in the cross -examination that their business was of sale of grains. Mr. Moon then submitted that the respondent never filed any Khasra for the relevant years to show that possession was given to the respondent i.e. relevant year 1991 -92, but filed Khasra 7/12 extract of the year 1992 -93 but then that was manipulated. What was relevant was the Khasra for the year 1991 -92 which is not found on record. Mr. Moon then contended that the respondent miserably failed to prove the ownership by providing the sale deed itself and that is finding of fact recorded by the trial Judge and, as such, no ownership could be said to be proved on the plaintiff by merely looking the entry 7/12 extract in the absence of the available documentary evidence, namely, the original sale deed which was never filed on record. What was filed was photo copy of the alleged original sale deed. Even certified copy was not obtained for filing in the Court for leading the secondary evidence. Thus, the sale deed having been denied, the respondent was not the owner of the suit field as contended by her and, therefore, the decree could not have been passed by the lower Appellate Court. The judgment of lower Appellate Court is clearly faulty and does not meet the reasons recorded by the trial Judge on the aspect of ownership or possession. The appellant therefore prays for reversal of for the judgment of lower Appellate Court. Mr. Moon, the learned counsel relied on the following decisions: