TMI Blog2009 (3) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the said property was allegedly handed over to the father of the respondent as a licensee at an agreed licence fee of ₹ 1,257.50 per month. The said partnership firm was dissolved pursuant whereto the appellant became the owner of the said property. Appellants contend that the respondent had made payments towards licence fee by a cheque but when deposited, the same was dishonoured. On the said contention, appellant filed a suit for recovery of possession which was marked as Special Suit No.330 of 1987 praying, inter alia, for the following reliefs : (a) That it be declared that the Defendant has no right, title or interest of any nature whatsoever in respect of the property, viz., being the plot of land admeasuring one acre four gunthas or thereabouts, that is 5,324 sq. yards (44 gunthas x 121 sq. yds.) equivalent to 4451.53 sq. meters, along with 6 (six) corrugated iron-sheet godowns, one house and one well thereon, known as Kandechichawli situated at Gram Panchayat Nos.753 to 761 in the village Saykheda, Sub-District Niphad, District Nasik or say part thereof, or to store or keep any goods, articles or things therein or to use, enter upon or remain upon the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is suit. I have made a wrong application to put my name as owner. And enclosed statement in English. Plaintiffs are calling this statement in English as Sale Deed. Neither me nor my father have executed any Sale Deed. We have never sold the suit property. 26. Thinking that, I store onions in the suit property the plaintiffs have created a wrong story of storage charges and asked for a big amount from me which is not acceptable by me. Plaintiffs are doing business of earning interest illegally for which they use various names. Various firms are being opened. All these firms and names are bogus. Few days back plaintiffs in the plaint. One bogus firm was opened in 1981 by the plaintiffs. Some relations have been shown by that firm with me. That firm has given some cheques to me. Some entries have been made by that firm for that cheque given to me. After some neat calculation it has been shown that the cheque is for storage charges has started in the plaints. Plaintiffs have collected a lot of information on about me. I understand that plaintiffs are making open plans and skillfully make some transactions and showing some relation file suits and get orders. 27. The relation of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of a money lending transaction. It was held that the appellants have failed to prove that the suit property was purchased by them by reason of the aforementioned deed of sale dated 29.6.1978. On the said findings, the suit was dismissed. An appeal was preferred by the appellant thereagainst. During the pendency of the said appeal, the written statement was amended by inserting paragraph 25A therein which reads as under : 25A)Along with the said sale deed of the said dated 29/6/1978 this defendant is saying this also that this sale deed is nominal and of the bogus nature that was never implemented and through it the plaintiff had never got any type of ownership and he is not getting it and the same was not in the mind of the father of plaintiff and defendant and never he was not keeping this in his mind. The possession of the property was never given to the appellant. In this matter the true fact is such that the firm of the plaintiff namely M/s. Ghevarchand Bhaniram Co. and its partners are doing the business of money lending. His other firms also doing the money lending business. The Firm and its partners and their other firm and the father of the defendant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact is that plaintiff's firm M/s. Ghevarchand Bhaniram and Co. and its partners carry the business of money lending. There other firm also carries the same business of money lending. There were and there are many money lending transactions between the said firms and defendant's father. Said firm had no reason to purchase the property at Saikheda. As defendant's father was in need of money he had borrowed as a loan a sum of ₹ 50,000/- from said firm and its partners and defendant's father had executed the said so called sale deed dated 29.6.1978 as a security for the said loan amount. As the plaintiff firm and its partners have no license for money lending business they have obtained the said so called sale deed from defendant's father at Mumbai. It was never meant to be given effect to and is not presently meant to be given effect to and accordingly possession was not transferred and is not transferred. Plaintiff's loan amount was repaid from time to time and said sale deed was executed as a document for security for the money lending transaction and the plaintiff or his firm has not never acquired any ownership rights because of the said sale deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty to Ghevarchand Bhaniram. The possession is given, this clause in sale deed is not true ₹ 50,000/- was rcd. By my father as is mentioned in the Sale Deed by my father, I cannot say anything about it. (Emphasis supplied) 7. The First Appellate Court framed an additional issue as to whether the deed of sale deed of sale was executed as a security for the amount of money lending of ₹ 50,000/- and was not intended to be acted upon as a sale deed. Upon taking into consideration the evidence brought on record by the parties, the learned Trial Court enumerated the following circumstances to hold against the appellant : (i) For the property of ₹ 50,000/- the monthly charges for its occupation of ₹ 1,257.50 appear excessive. With such amount in 4 years, the entire price of the property can be realized which is not befitting to the common course of transaction. (ii) There is evidence on record that for the godown, the society is paying ₹ 45/- per month only to the defendant. (iii) The plaintiffs are businessmen and were not likely to allow the rent/licence fee accumulated for 40 months. During this period there would have been a demand in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith costs. 2. Judgment and decree of the Trial Court is hereby set aside and the suit is partly decreed as under : The plaintiff's suit for mandatory injunction as well as prohibitory injunction and for the storage charges at the monthly rate of ₹ 1,257.50 stands dismissed. The plaintiff are, however, entitled to the amount of ₹ 50,000/- with interest thereon @ 6% per annum from 29.6.1973 till its realization. The plaintiffs are entitled to the costs of the suit. The defendant do deposit the said amount or pay the same to the plaintiffs immediately failing with the plaintiff can recover it through the court. 10. The High Court dismissed the Second Appeal preferred thereagainst, inter alia, opining : It is true that initially such defence was not raised in the written statement, however, in the first appeal the amendment of the pleadings was sought and it was allowed by the court and by way of the amendment the respondent-defendant raised such contentions. The order of allowing the amendment was not challenged by the appellant in further proceedings. In view thereof the submissions of Mr. Sugadre, learned counsel for the appellant that in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed deed of sale spells out the real transaction between the parties as would be evident from the following : It is a condition of this sale that in case the Purchasers shall be deprived of possession of the said property (said premises) or any part thereof by virtue of any act of Vendor or his heirs or assigns or successors in interest or by any person claiming title thereto vendor and his estate shall be bound to compensate the Purchasers for such loss or damage arising from such act and shall be liable to refund the purchase money with interest or by any person claiming title thereto the Vendor and his estate shall be bound to compensate the Purchasers for such loss or damage arising from such act and shall be liable to refund the purchase money with interest from the date of the deprivation or accrual of such loss. (iii) Nature of transaction being a money lending one as would appear from the purported deed of sale itself and the plaintiff-appellant having failed to prove its case of creation of a leave and licence, the judgment of the Trial Judge is unassailable in view of the extrinsic evidence that the transaction was a sham one and, thus, could not be eschewed and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Educational Society Ors. [AIR 2007 SC 2191]}. 16. The First Appellate Court, however, having regard to the amendment carried out in the written statement setting up a totally inconsistent plea from the one taken before the learned Trial Court by the respondent posed a question as to whether the respondent has discharged the burden placed on him. For the said purpose, critical analysis of the prevarication of the stand taken by the respondent from stage to stage also became relevant. It is true that when a pleading is amended, it, subject to just exceptions, takes effect from the date when original one is filed. It is also true that the Appellate Court, in exercise of its discretionary jurisdiction and subject to fulfillment of the conditions laid down under Order XLI Rule 27 of the Code of Civil Procedure, may allow the parties to adduce additional evidence. Pleadings of the parties, it is trite, are required to be read as a whole. Defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTHER that the Vendor and all persons having or lawfully or equitably claiming any estate, right, title and interest or law or in equity in the said premises hereby granted, released, conveyed, assured or intended so to be or any part thereof by, from under or in trust for him the vendor or any him shall and will from time to time and all times hereafter at the test and costs execute all such further and other lawful reasonably acts, deeds, things matter conveyances and assurances in law whatsoever for the better, further and more perfectly and absolutely, granting, realizing conveying and assuring the said premises and any part thereof hereby granted, released, conveyed and assured unto and to the use of the purchasers in manner aforesaid as shall or may be reasonably required by the purchasers, their successors or assigns or their counsel in law. 18. It further contains a stipulation that the purchaser had been in possession of the property and the original sale deed dated 15.7.1968 was handed over. One of the stipulations in regard whereto the contention of the respondent that the deed of sale in fact was a money lending transaction was raised reads as under : It is a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The terminology vaibulwafa used in the agreement does not carry any meaning. It could be either bai-ul-wafa or bai-bil-wafa . 22. It will bear repetition to state that with a view to ascertain the nature of a transaction the document has to be read as a whole. A sentence used or a term used may not be determinative of the real nature of transaction. Despite the fact that the term `baib-ul-wafa' was used in the transaction, this Court held that the document in question was a deed of reconveyance and not a mortgage with conditional sale, stating : 23. Baib-ul-wafa, it was held by the trial court connotes only an agreement for sale. In terms of Section 91 of the Evidence Act, if the terms of any disposition of property is reduced to writing, no evidence is admissible in proof of the terms of such disposition of property except the document itself. It relied upon a decision of this Court in Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434] and Roop Kumar v. Mohan Thedani [(2003) 6 SCC 595] to which we would revert to a little later. 20. Indisputably when a true character of a document is questioned, extrinsic evidence by way of oral evidence is admissible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided any evidence in support thereof had been adduced. No cogent evidence had been adduced by the respondent to show that the deed of sale was a sham transaction and/or the same was executed by way of a security. Right of possession over a property is a facet of title. As soon as a deed of sale is registered, the title passes to the vendee. The vendor, in terms of the stipulations made in the deed of sale, is bound to deliver possession of the property sold. If he does not do so, he makes him liable for damages. The indemnity clause should have been construed keeping in view that legal principle in mind. Although evidences had been brought on record to show that upon grant of leave and licence, the keys of godowns had been handed over but in respect thereof no contrary findings had been arrived at. We would assume that the parties entered into an arrangement as a result whereof the father of the respondent was to continue in possession. The character of his possession, however, changed from that of an owner to a licensee. A legal fiction in a situation of this nature is created in terms whereof the owner becomes dispossessed and regains possession in a different capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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