MAROTI BAHORAO Vs. DNYANOBA BHAORAO SHEMADA

JUDGEMENT

(1.) - This is defendant's second appeal arising out of a suit brought by the Respondent-plaintiff for cancellation of sale-deed mah LR] Maroti Bhaorao (Mahanoor) Marnor v. D. B. Shemada 347 dated 31-10-1975 in respect of the portion of 2 acres and 33 gunthas from survey No. 23/aa of village Shekta and for perpetual injunction and for re-conveyance of the suit property.

(2.) THE plaintiif purchased 2 acres 33 gunthas of land from Survey no. 23/aa for Rs. 1,500/- by registered sale-deed dated 9th August, 1967. The plaintiff owns Survey No. 21/aa admeasuring about 8 acres situated at village Shekta. In the year 1972-73 there was a famine and the plaintiff was in need of money. Defendant agreed to advance rs. 1,000/- to the plaintiff on the condition that the plaintiff should execute sale-deed in his favour by way of security for the amount of rs. 1,000/ -. On 29th January, 1974, plaintiff executed a sale-deed of an area of 4 acres from Survey No. 21/aa in favour of the defendant by way of security to the loan amount. The defendant had agreed to reconvey the said land on repayment of the loan amount. Accordingly, there was talk between the parties and the defendant agreed to re-convey four acres portion from Survey No. 21/aa. Both the plaintiff and the defendant went to Georai to execute a re-conveyance deed. It is alleged that the defendant demanded more amount i. e. Rs. 500/- and as the plaintiff had no money to pay he executed sale-deed for 2 acres and 33 gunthas of land from Survey No. 23/aa by way of security on 31-10-1975 and the defendant executed the sale- deed in respect of Survey no. 21/aa admeasuring 4 acres in favour of the plaintiff for Rs. 1,000/-Both the sale-deeds were executed simultaneously on 31st October, 1975. The case of the plaintiff is that the sale-deed executed by him in respect of Survey No. 23/aa was only by way of security and it was a nominal sale-deed. Plaintiff did not receive any consideration. He never gave possession of Survey No. 23/aa. Thereafter the defendant started obstructing the possession of the plaintiff and therefore, the plaintiff filed the suit against the defendant for perpetual injunction and for cancellation of the sale-deed dated 31-10-1975 in respect of the suit property. In the alternative, plaintiff prayed for a decree for re-conveyance in respect of survey No. 23/aa.

(3.) DEFENDANT's contention is that the plaintiff owned both the lands, survey Nos. 23/aa admeasuring 2 acres 33 gunthas and also Survey no. 21/aa admeasuring 8 acres. Plaintiff sold four acres portion from survey No. 21/aa to the defendant absolutely. Defendant denied that the plaintiff was in need of money and for security the land was sold to him. According to the defendant, he purchased some portion from survey No. 23/aa and, therefore, he and the plaintiff agreed to exchange the lands. Plaintiff agreed to give 2 acres and 33 gunthas of land from survey No. 23/aa in exchange of a portion of four acres from Survey no. 21/aa. Accordingly, they went to Georai on 31-10-1975 and executed respective sale-deeds in favour of each other. After the sale-deed, the defendant was put in possession of Survey No. 23/aa and the defendant had given possession of Survey No. 21/aa 'to the plaintiff. Defendant is in possession of Survey No. 23/aa as owner and the plaintiff is not entitled to cancellation of the sale-deed and for re-conveyance of the property.