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Judgment
Kingaonkar V.R., J.—Challenge in this appeal is to Judgment in an appeal (R.C.A. No. 110/1980) rendered by learned Additional District Judge, whereby and where-under Judgment and decree passed by trial Court in a suit (R.C.S. No. 133/1975) came to be reversed.
Appellants are real brothers inter se and are original plaintiffs. Deceased respondent No. 1 is the main contesting party and was original defendant No. 6. Respondents No. 2 to 5 are the original defendants No. 2 to 4. Original defendant No. 5 had died during pendency of the suit. The original defendants No. 1 to 5 are the legal representatives of deceased Nivrutti being his sons, daughters and widow. Out of them, original defendant No. 1 - Sopan and defendant No. 2 - Ramchandra were the real brothers inter se. Admittedly, Sopan was elder amongst them.
The appellants/plaintiffs filed suit (R.C.S. No. 133/1975) for declaration of ownership in respect of land Survey No. 173, admeasuring 8 acres 3 gunthas and for perpetual injunction. They further sought declaration that sale-deed dated 21st March, 1974 executed by deceased defendant No. 2 Ramchandra in favour of the respondent No. 1 (original defendant No. 6) and a consent decree brought about as between them in suit (R.C.S. No. 189/1974) was not binding on their rights.
Briefly stated, the appellants'' case before the trial Court was that deceased Nivrutti was karta of the joint Hindu family consisting of himself and the original defendants No. 1 to 5. The suit land was owned by the joint Hindu family. On 29th July, 1973, said Nivrutti orally agreed to alienate the suit land to them for consideration of Rs. 16,000/-. They paid Rs. 7500/- as part of consideration amount to said Nivrutti on 6th August, 1973 and thereupon, the agreement of sale was reduced into writing. In pursuance to the said agreement of sale (Exh-90), they were inducted in actual possession of the suit land. The vendor-Nivrutti died in August, 1973 before the transaction could be completed. The defendants No. 1 to 5 jointly executed a registered sale-deed dated 27th February, 1975 to them upon receiving remaining consideration amount. Thus, they became owners and possessors of the suit land.
The appellants further alleged that inspite of the previous agreement of sale and their actual possession over the suit land, defendant No. 2 Ramchandra executed a sale-deed dated 21st March, 1974 in favour of defendant No. 6 i.e. respondent No. 1 purporting to transfer western 4 acres 2 gunthas land out of the suit land and, thereafter, brought about a consent decree in suit (R.C.S. No. 189/1974). They averred that the subsequent sale transaction is not binding on them. They alleged that the respondent No. 1 thereafter attempted to disturb their lawful possession on strength of illegal sale-deed and the consent decree. Consequently, they sought reliefs of declaration and injunction.
Original defendants No. 1 to 4 filed consent written statements. They were not the contesting parties throughout.
The respondent No. 1/original defendant No. 6 resisted the suit. He denied execution of the agreement of sale (Exh-90) by deceased Nivrutti. He denied that the appellants were inducted into possession of the suit land. He asserted that after death of Nivrutti, the suit land was partitioned between the defendants No. 1 and 2 inter se. His vendor i.e. defendant No. 2 Ramchandra received 4 acres 2 gunthas land out of the suit land during course of such partition. Said Ramchandra and the defendant No. 1 were separately cultivating their shares. He asserted that he lawfully purchased the 4 acres 2 gunthas land from the original defendant No. 2 for consideration of Rs. 4000/ - and was put in actual possession thereof. He contended that he was in actual possession of the said land until he was served with writ of temporary injunction order. He, therefore, urged to dismiss the suit.
The parties went to trial over issues settled below Exh-75. They adduced oral and documentary evidence in support of the rival contentions. The suit came to be decreed. Feeling aggrieved, the respondent No. 1/defendant No. 6-Ratanhari preferred appeal. By the impugned judgement, the first Appellate Court allowed the appeal. Hence, this second appeal at instance of the original plaintiffs.
The second appeal was admitted without formulating substantial question of law. At the time of final hearing, however, the following substantial questions of law are formulated for determination.
(i) Whether, in the facts and circumstances of the present case, the first Appellate Court committed patent error while holding that the agreement of sale (Exh-90) could not have been executed by deceased Nivrutti as he was not alive on the said date, particularly, when the respondent No. 1 did not specifically plead such a fact with reference to date of death of said Nivrutti and, therefore, no amount of evidence in this behalf could be allowed?
(ii) Whether, in the facts and circumstances of the present case, the first Appellate Court committed patent error while upholding sale transaction between the respondent No. 1 and deceased defendant No. 2 Ramdhandra merely on surmise that there was partition inter se between original defendants No. 1 and 2 and that the 4 acres 2 gunthas land was allotted to defendant No. 2 Ramchandra during course of such partition?
Heard learned Counsel for the parties.
Before I advert to oral and documentary evidence tendered by the parties, it may be stated that Section 53-A of the Transfer of Property Act gives protection to a prospective purchaser of immovable property if such a purchaser has taken possession of the property or any part thereof in part performance of the contract and has done some act in furtherance of the same. The Proviso appended to Section 53-A reads as follows:
Provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
In the present case, it was not case of the contesting defendant/respondent No. 1 that he was entitled to seek protection under the relevant proviso. The parties are inhabitants of the same village. Their lands are proximately situated. The defence of the respondent No. 1 was that the agreement of sale (Exh-90) was not executed by deceased Nivrutti. It was for such a reason that the appellants could not get any right in terms of the said document.
At this juncture, it may be mentioned that the edifice of the impugned Judgment hinges upon finding that as on date of the agreement of sale i.e. 6th August, 1973, Nivrutti Bhalerao was not alive. In para 5 of the plaint, the plaintiffs/appellants alleged that before execution of the registered saledeed, said Nivrutti died in the month of August, 1973. The plaintiffs did not mention specific date of his death. However, it is categorically asserted that after the execution of the agreement of sale and before he could execute registered sale-deed, said Nivrutti died. In reply to these pleadings, contesting defendant No. 6/respondent No. 1 did not specifically plead that deceased Nivrutti was not alive as on the date of the agreement of sale. The defendant No. 6/respondent No. 1 only admitted the fact that said Nivrutti Bhalerao died as shown in the relevant para 5 of the plaint. Thus, it is manifest that the respondent No. 1 did not categorically plead date of death of said Nivrutti nor pleaded that he was not alive as on the day of execution of the agreement of sale (Exh-90). Secondly, his pleadings in the written statement would make it amply clear that he did not state particulars about period of internal partition between the original defendants No. 1 and 2. It is vaguely stated in para (10) of the written statement that after death of Nivrutti Bhalerao, the original defendants No. 1 and 2 got divided the suit land between themselves.
The respondent No. 1/defendant No. 6 challenged the agreement of sale (Exh-90) on the allegation that it was not agreed by deceased Nivrutti to sell the suit land to the plaintiffs/appellants. He further pleaded that he was not knowing about any such agreement of sale between deceased Nivrutti Bhalerao and plaintiffs/appellants. Needless to say, it was not his case that the written agreement of sale dated 6th August, 1973 is a forged and fabricated document. His case simply was that he was not knowing about such agreement.
14.Unless there was categorical pleading about the fabrication of the agreement of sale (Exh-90), there was no substantial reason to assume such a plea. The first Appellate Court observed:
Agreement of sale dated 6-8-1973 is not only disputed by Ratanhari (respondent No. 1) but it is specifically contended by him that Nivrutti was not at all alive when agreement of sale dated 6/8/1973 was brought into existence.
I find it difficult to ferret out any such pleadings from the written statement of the defendant No. 6/respondent No. 1. His such stance during course of the trial is probably referred by the learned Additional District Judge as his contention in the pleadings.
Order VI, Rule 2 of the CPC requires the parties to lay foundation of the case in the pleadings. The parties are required to specifically plead all the "material facts". The particulars of not only the plea of undue influence, fraud and misrepresentation are required to be given under Rule 4 of Order VI, but wherever required, the particulars with dates and items, if necessary, also shall be stated in the pleadings. Rule 4 reads as follows:
Particulars to be given where necessary.-
In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
The expression "and in all other case of which particulars may be necessary" would cover the cases wherein particulars of material facts are expected from a party. Rule 4 requires particulars with dates and items to be stated in pleadings when the nature of case so requires a party to set out such details. The expression "material facts" would mean all the primary facts which must be proved at the trial by a party to establish the existence of cause of action or his defence The word "material" does imply essential or necessary for the purpose of formulating the complete defence. The respondent No. 1 simply denied that the deceased - Nivrutti executed agreement of sale in favour of the plaintiffs/appellants on the premise that he did not know about the same. It is well settled that over and above the cases specified in Rule 4, there may be other cases in which particulars may be necessary. In the present context, it may be said that without there being pleadings of the respondent No. 1 about the fact that deceased Nivrutti was not alive as on date of execution of the agreement of sale dated 6th August, 1973, he could not be permitted to lead evidence in this context. It is well settled that no amount of evidence can be admitted without there being required pleadings.
It need not be reiterated that the respondent No. 1/defendant No. 6 had simply denied his knowledge as regards execution of the agreement of sale (Exh-90) by deceased Nivrutti. His pleadings do not show any specific averment as regards fictitious and fabricated nature of the said document (Exh-90). Inspite of these deficiencies, he was allowed to lead evidence to show that the agreement of sale is fictitious and brought about after death of said Nivrutti.
In Om Prabha Jain Vs. Abnash Chand and Another, , the Apex Court observed:
...We need not decide in this case what the pleadings and the proof should be. The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Here, the pleas were made on two different occasions and contradicted each other. The evidence which was tendered contradicted both the pleas. The source of the information was not attempted to be proved and the witnesses who were brought were found to be thoroughly unreliable. In these circumstances we do not propose to refer to the evidence in this Judgment any more.
Similarly, the Apex Court in Vinod Kumar Arora Vs. Surjit Kaur, , and in Deoki Nandan Vs. Murlidhar, , emphasized need for proper pleadings. It is observed that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. So also, a Single Bench of this Court in Uttam Sambha Deshmukh and others Vs. Yamunabai Bhoyar and others, , held that Order VI, Rule 2 of the CPC requires that the material facts should be pleaded by the parties. It was further held that in the absence of material facts constituting the plea of tenancy, viz. as to when the tenancy commenced; who was the landlord; what were the terms and conditions of the tenancy; what was the rent fixed etc. reference u/s 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 was not warranted. No issue was framed in the present case as regards date of death of deceased Nivrutti.
It is in the above backdrop that the evidence of the parties may be scrutinized. The version of P.W. 1 Gokul reveals that deceased Nivrutti executed the agreement of sale (Exh-90) as on 6th August, 1973 after the negotiations were settled in respect of sale of the suit land. His version reveals that the consideration of the suit land was settled at Rs. 16,000/-. The due execution of the agreement of sale after payment of part of the consideration amount is spelt out by him. His version reveals that said Nivrutti died about 15 days after the agreement of sale. His version further reveals that he and his brother were put in possession of the suit land immediately after the execution of the agreement of sale. He categorically states that the respondent No. 1/defendant No. 6-Ratanhari was quite aware of his possession on basis of the agreement of sale. For, another land of defendant No. 6/respondent No. 1, which bears survey No. 174, is situated on northern side adjoining to the suit land. He further deposed that the defendant No. 6/respondent No. 1 used to draw drinking water from the well situated in the suit land and for such reasons, knew about their possession on strength of the agreement of sale. His version reveals that after death of said Nivrutti, original defendants No. 1 and 2 continued to remain joint. The suit land was never divided amongst them. He admits that defendant No. 1 Sopan was not in the village since about 5 to 6 years before death of Nivrutti. He admits that the suit land was ancestral property in the hands of deceased Nivrutti. His version further reveals that father of the defendant No. 6/respondent No. 1 had purchased certain land of deceased Nivrutti in the past. So also, his father had purchased 7 acres land from said Nivrutti, out of survey No. 173. He denied the suggestion that Nivrutti was not alive on 6th August, 1973.
The execution of agreement of sale (Exh-90) is corroborated by P.W. 2 Bhavanrao. He is attesting witness of the agreement of sale. His version reveals that the plaintiffs paid Rs. 7500/- to deceased Nivrutti as earnest amount and thereafter, the latter had put his thumb impression as executant of the said agreement of sale. His cross-examination reveals that the stamp paper for agreement of sale was brought by defendant No. 2 Ramchandra. The stamp paper was purchased by defendant No. 2 Ramchandra on 30th July, 1973. The endorsement on the stamp paper shows that it was purchased by him on behalf of deceased Nivrutti. The learned Additional District Judge held that the document is suspicious because when the stamp paper was available on 30th July, 1973, there could be no impediment in reducing terms of the agreement in writing on the same day. It is observed:
If really talk of agreement of sale took place eight days before the same was executed, I am at loss to know as to why it was not reduced into writing at the said time only. Because it is seen from evidence of Mukundrao that Ramchandra already brought a stamp paper, some days before 6-8-1973.
This line of reasoning appears to be illogical. One cannot be oblivious of the ground realities prevailing in the rural area. The availability of the amount of earnest money, need to collect such amount from various sources and other co-related factors could be the reason for preparing the document on 6th August, 1973. Indeed, this can be looked from another angle. If deceased Nivrutti was not alive on 6th August, 1973, as alleged, then the plaintiffs and the defendant No. 2 Ramchandra could have put an earlier date, particularly the date on which the stamp paper was purchased. If at all the document was to be prepared fictitiously, then nobody had deterred them from putting an earlier date as the date of execution of the said agreement of sale. So also, being inhabitant of the same village and owner of an adjoining land, respondent No. 1/defendant No. 6-Ratanhari would not have committed omission to pin-point the date of death of said Nivrutti while filing his pleadings. I mean to say, he would have normally challenged genuineness of the document, namely, agreement of sale (Exh-90) specifically on the ground that as on 6th August, 1973, executant Nivrutti was not alive. His omission to do so speaks volume against him.
The evidence on record purports to show that the plaintiffs were put in possession of the suit land in pursuance of the agreement of sale (Exh-90). Their oral evidence is corroborated by entries in the revenue record. Copy of the Mutation Entry No. 198 (Exh-5) reveals that the agreement of sale, styled as "Isar pawi" (Exh-90) was produced before the revenue officer. The village talathi proposed mutation of the plaintiffs'' name in column of cultivation on 3rd February, 1974. The mutation entry was subsequently sanctioned by the Tahsildar on 24th February, 1974. The copy of the mutation entry was issued on 30th April, 1974. The sale-deed executed by defendant No. 2 Ramchandra in favour of defendant No. 6-Ratanhari (respondent No. 1) is dated 21-03-1974. It is explicit, therefore, that the plaintiffs sought mutation of their names before the execution of sale-deed (Exh-102) in favour of the respondent No. 1. Their names were shown in the cultivation column for the year 1973-74. The revenue entries for the year 1973-74 do not show division of the suit land in two (2) shares. Copy of the 7/12 extract (Exh-6) corroborates the plaintiffs'' case. It appears that for the first time in 1974-75, the division of two (2) shares was shown. It appears that name of the respondent No. 1 was mutated vide mutation entry No. 201 (Exh-25) which was sanctioned on 8th March, 1975.
Conduct of the respondent No. 1/defendant No. 6 may be noticed. He immediately filed suit for perpetual injunction (R.C.S. No. 189/1974) against his vendor-defendant No. 2 Ramchandra. He described the 4 acres land which he claimed to have purchased from the defendant No. 2. The suit ended in a compromise decree which was as per consent of the defendant No. 2 Ramchandra. Thus, the respondent No. 1-Ratanhari apprehended that the vendor may not support his case. In order to bind the original defendant No. 2-Ramchandra, the consent decree for injunction was brought into existence (Exh-26). The plaintiffs and other defendants were not parties to that suit. Obviously, they are not bound by the said injunction decree.
Coming to the oral evidence of the parties, it is explicit that the respondent No. 1-Ratanhari asserted internal partition between the defendants No. 1 and 2 after the death of Nivrutti. How and when the said partition was effected between the two (2) brothers is not pleaded by him. The testimony of D.W. 1 Ratanhari (Exh-99) reveals that he did not give details of the partition between original defendants No. 1 and 2. He admits that he has no knowledge about date of death of Nivrutti. His version reveals that he came to know about internal partition between the defendants No. 1 and 2 because they were separately cultivating the lands. He admits, unequivocally, that so called partition between the defendants No. 1 and 2 was not effected in his presence. He further states that he did not wish to examine any witness on the point of such partition. He further states that he was having mutation record pertaining to the partition. As a matter of fact, there appears no mutation entry in respect of partition of the suit land between the defendants No. 1 and 2. The cross-examination of D.W. Ratanhari further reveals that the plaintiffs challenged the mutation entry sanctioned in his name and the matter was pending for inquiry. He deposed that he was dispossessed from the purchased land, on basis of temporary injunction order, during pendency of the suit.
The version of D.W. Nanasaheb reveals that copy of death register (Exh-104) is issued by him as per the entries recorded in the register. He states that the entry was taken by one Narayanrao Kulkarni. The information was given by Dnyanoba Kotwal about death of deceased Nivrutti. Admittedly, said Dnyanoba Kotwal is alive. He was not put in the witness box. He is the person on whose information, the entry was recorded in the death register. The entry shows that death of Nivrutti reportedly took place on 2nd August, 1973. In this context, the plaintiffs examined P.W. 7 Bhanudas. His version purports to show that he was working as Sarpanch of the village between 1964 and 1968 and also from 1970 to 1978. He deposed that the entry No. 1 dated 2nd August, 1973 purporting to show that Nivrutti died on 2nd August, 1973 is not in the handwriting of the then Secretary Narayanrao. He was accustomed with handwriting of Secretary-Narayanrao Kulkarni because both of them were working together and he often used to see Narayanrao Kulkarni while writing cash book and other registers. The version of P.W. Bhanudas creates serious doubt about authenticity of the said entry in the death register. Obviously, it cannot be said that the respondent No. 1/defendant No. 6 satisfactorily proved the contention that said Nivrutti was not alive on 6th August, 1973. It need not be reiterated that such contention was introduced for the first time while leading evidence and it was not at all his case in the pleadings.
The other evidence of the respondent No. 1/defendant No. 6 comprises of D.W. Angad and D.W. Babu. Out of them, D.W. Angad is attesting witness of the sale-deed (Exh-102). His version reveals that he attended the agreement of sale between the defendant No. 6 and the defendant No. 2. He corroborates recitals of the sale-deed (Exh-102). There is no dispute about the fact that the defendant No. 2 Ramchandra executed the sale-deed (Exh-102) in favour of the respondent No. 1/defendant No. 6. According to D.W. Babu, after death of Nivrutti, the defendants No. 1 and 2 started separate cultivation of their shares. He states that subsequently, the share of defendant No. 2 Ramchandra was being cultivated by the defendant No. 6/respondent No. 1 for a period of about one year. His agricultural land is adjoining to the suit field. His cross-examination reveals that the suit land is bisected by means of a ''dhura'' (bandty. He deposed that after about one month from death of Nivrutti, the defendants No. 1 and 2 started separate cultivation of the suit land. It is pertinent to note that as per his version, the defendant No. 6/respondent No. 1 started separate cultivation of the purchased land from ''Gudi-Padwa'' festival. It is of common knowledge that ''Gudi-Padwa'' festival falls in the month of April. The death of Nivrutti occurred in the month of August, 1973. Obviously, it is difficult to believe that the two (2) shares were separated somewhere in September/October of 1978. In fact, there is no tangible evidence to infer that the suit land was divided into two (2) separate shares, one being cultivated by defendant No. 1 and another by the defendant No. 2.
The learned Civil Judge gave adequate reasons in support of the findings that there was earlier agreement between the plaintiffs and deceased Nivrutti to sell the suit land. The evidence on record sufficiently proves that the respondent No. 1/defendant No. 6 had knowledge of the existing agreement of sale between the plaintiffs and deceased Nivrutti. He being owner of adjacent piece of land, could have seen possession of the plaintiffs. The possession of the plaintiffs was also recorded in the revenue record. The case of the respondent No. 1/defendant No. 6 is, therefore, not covered by Proviso appended to Section 53-A of the Transfer of Property Act. It is also proved that the suit land was never divided into two (2) parts as alleged by the respondent No. 1/defendant No. 6. Obviously, original defendant No. 2 Ramchandra had no authority to alienate the disputed 4 acres land to the respondent No. 1/defendant No. 6. He could not be treated as ''karta'' of the joint Hindu family. For, admittedly, original defendant No. 1 Sopan was elder brother of the defendant No. 2-Ramchandra. Impugned Judgment reveals that the learned Additional District Judge appears to have assumed certain fact situation without proper appreciation of the facts. For example, he observed:
There is no dispute between the parties that on 21-3-1974, Ramchandra transferred his share from Survey No. -173 for the price of Rs. 4000 to Ratanhari (respondent No. 1).
This is not correct factual position. In fact, there was dispute about the fact that defendant No. 2 Ramchandra held separate half share in land Survey No. 173. Moreover, he denied the sale transaction through his common written statement alongwith other co-defendants.
The learned Additional District Judge further observed:
Plaintiffs were aware of the fact that there was some dealing between Ramchandra and Ratanhari when sale deed dated 25-2-1975 came in existence. Question before them must be about share of Ramchandra with land in dispute, which was already transferred by him to Ratanhari under sale-deed dated 21-3-1974.
The above observations of the first Appellate Court appear to be based on conjectures. There is no basis to infer that the plaintiffs were aware of the dealings between defendant No. 2 Ramchandra and defendant No. 6 Ratanhari.
Faced with the infirmities noted above, Mr. M.M. Patil (Beedkar) would submit that it would not be permissible to interfere with the appreciation of evidence as done by the first Appellate Court, on grounds that the first Appellate Court had not come to grips with reasoning of the trial Court. He seeks to rely on Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another, . The Apex Court in the given case held that it is not permissible for the second Appellate Court to interfere with findings of the first Appellate Court only on the ground that the first Appellate Court had not come to grips with reasonings of the trial Court. I have emphasized the word "only" in order to make it clear that such cannot be the only ground and if other grounds are available, then the interference is permissible. The Apex Court in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., , held:
...Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first Appellate Court had discharged the duty expected of it. We need only remind the first Appellate Courts of die additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first Appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first Appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of die first Appellate Court even on questions of law unless such question of law be a substantial one.
Considering the ratio of "Hazari Santosh Hazari''s" case, it would be amply clear that the first Appellate Court is duty bound to address itself on the relevant issues and render Judgment which would come within close quarters of the reasoning of the trial Court. Tested on the touchstone of the requirements of law, the Judgment of the first Appellate Court in the present case is quiet unsustainable.
For the reasons aforestated, I have no hesitation in holding that the impugned Judgment calls for interference. The first Appellate Court committed patent error while reversing the trial Court''s judgement. The plaintiffs duly proved that they are not bound by the sale transaction inter se between the original defendant No. 2 Ramchandra and defendant No. 6/respondent No. 1-Ratanhari. The suit was rightly decreed by the trial Court. Hence, the second appeal is allowed. The impugned Judgment is set aside and that of the trial Court is restored. No costs.