KANTILAL PITAMBAR RAJA Vs. VINAYAK

JUDGEMENT

(1.) SINCE these two appeals arise out of one and the same judgment passed by the trial Court in Regular Civil Suit No. 140 of 1985 and also the appellate Court in Regular Civil Appeal No. 1 of 1987, they are heard together and are being decided by this common judgment.

(2.) THE facts giving rise to these second appeals are briefly stated thus: the appellants in Second Appeal No. 191/1989 are the original plaintiffs, and the appellants in Second Appeal No. 114/1989 are the original defendants. A suit was filed by the plaintiffs against the defendants bearing Regular Civil Suit No. 140/1985, for declaration, permanent injunction and for possession of the suit property. According to the plaintiffs, the plaintiff no. 1 was having ancestral properties at Mouza Potgawhan, Taluka Kalamb, District Yavatmal. The property was partitioned amongst the plaintiffs and wife of the plaintiff no. 1, by a registered partition deed dated 27/5/1985. In view of the partition deed, the plaintiff nos. 2 to 4 became the owners of 3 hectares and 73 R of land from Survey No. 44/1. The plaintiff no. 1 was the manager and the natural guardian of the plaintiff nos. 2 to 4 and hence, he filed the suit on behalf of the minors. According to the plaintiffs, it was the practice of the defendant no. 1 to get agreements of sale executed in respect of the properties belonging to the borrowers. The plaintiff no. 1 was in need of Rs. 2,500/- in March, 1984 and hence he approached the defendant no. 1 for a hand-loan. The defendant no. 1 asked the plaintiff no. 1 to give security for this loan and got the signatures of the plaintiff no. 1 on certain blank papers. The defendant no. 1 asked the plaintiff to get the agreement of sale executed in the name of his son, who was arrayed as defendant no. 2 to the civil suit. It is pleaded by the plaintiffs that though the defendant no. 1 got the agreement of sale executed from the plaintiff no. 1, the same was not to be acted upon. It is then pleaded by the plaintiffs that the defendant no. 2 had got his name recorded in the Crops Statement for the years 1981-82, 1982-83, 1984-85. Since the defendant nos. 1 and 2 threatened the possession of the plaintiffs in June, 1985, the plaintiffs instituted the suit. The plaintiffs sought a decree of permanent injunction restraining the defendants from disturbing the possession of the plaintiffs. The plaintiffs further sought a declaration that the contract of sale of the suit field executed by the plaintiffs in favour of the defendant no. 1, be declared as void as it was got executed towards the security for the hand-loan. By an amendment to the plaint, the plaintiff sought possession of the suit field and an enquiry into future mesne profits.

(3.) THE defendants denied the claim of the plaintiffs and pleaded that the plaintiff no. 1 alone was not in possession of the suit field and he was a manager of the property. The plea of partition as raised by the plaintiffs, was denied by the defendants. They further denied that the plaintiff no. 1 was in need of Rs. 2,500/- and, therefore, he approached the defendant no. 1 for hand-loan. According to the defendants, agreement of sale was a genuine transaction and as per the recital in the agreement of sale, possession of the property was delivered to the defendant no. 1. The defendants denied that the contract was a nominal one and was executed as security for the loan amount of Rs. 2,500/ -. It was further denied that the defendants had agreed to return the agreement of sale to the plaintiffs, after the repayment of loan by the plaintiff no. 1. It was pleaded that the defendants have parted with an amount of Rs. 11,000/- towards earnest amount. The defendants sought the dismissal of the suit.