Kumar Vs. Sukhdev  INSC 750 (29 April 2008)
TARUN CHATTERJEE & HARJIT SINGH BEDI
NON-REPORTABLE CIVIL APPEAL NO 3039 OF 2008 (Arising out of SLP (C) No.
15481 of 2005) TARUN CHATTERJEE,J.
1. Leave granted.
2. The plaintiff in a suit for recovery of possession of agricultural land
as fully described in the plaint [hereinafter referred to as "the suit
land"] is the appellant before us. The plaintiff/appellant instituted the
suit for recovery of possession of the suit land on the basis of a sale deed
dated 13th of July, 1992 executed by the defendant/respondent in his favour.
The respondent, however, in his written statement raised the plea that the
transaction in question was not out and out sale but it was a loan in
substance. The trial court decreed the suit holding that the transaction was an
out and out sale.
3. In appeal, the Appellate Court, however, reversed the judgment of the
trial court and dismissed the suit. Feeling aggrieved, the plaintiff/appellant
filed a Second Appeal in the High Court of Judicature of Bombay at Nagpur
Bench, which also affirmed the judgment of the appellate court. The
plaintiff/appellant, feeling aggrieved by the decision of the High Court in the
Second Appeal, has filed a Special Leave Petition, which on grant of leave, was
heard in presence of the learned counsel for the parties.
4. We have heard the learned counsel for the parties and examined the
judgment under appeal as well as the judgment of the appellate court and the
trial Court. After having examined the judgment of the High Court, judgments of
the courts below and other materials including oral and documentary evidence on
record, we are of the view that while affirming the findings of the appellate
court on the question whether the transaction was a loan in substance or an out
and out sale, the High Court had failed to notice the material evidence on
record. The High Court affirmed the finding of the appellate court only on the
basis that the trial court had ignored the entries of the revenue record to the
effect that the mother of the respondent Gangubai was the co-owner of the suit
land and since Gangubai did not execute the sale deed in favour of the
plaintiff/appellant and had not been joined as a party to the suit, the suit
filed by the plaintiff/appellant on the basis of the Sale Deed in which
Gangubai was not one of the executants would not be held to be maintainable.
However, the only question that was raised in the suit was whether the
transaction in question was an out and out sale or a loan in substance in
which, in our view, the revenue record in respect of the suit land was not
material to be considered. From the perusal of the record, we find that the
respondent himself had admitted in the evidence before the trial court that he
had himself gone to the office of the Registrar and registered the sale deed in
favour of the plaintiff/appellant. We also find from the record that the High
Court had failed to notice that the respondent sold the suit land in the
capacity of Karta (Manager) of the Joint Family and for fulfilling the needs of
the Joint Family. That apart, the High Court had failed to notice that even
assuming that the mother was a co-owner of the suit land, even then, the entire
suit could not be dismissed as the plaintiff/appellant had purchased from the
respondent who is admittedly a co-owner of the suit land. Be that as it may,
since the High Court had not considered the materials on record, including the
oral and documentary evidence, we are of the view that the High Court was not
justified in affirming the judgment of the appellate court without taking into
consideration the above aspect of the matter and also the oral and documentary
evidence adduced by the parties to prove that the transaction in question was
an out and out sale and not a loan in substance.
5. For the reasons aforesaid, we set aside the judgment of the High Court
and the appeal is sent back to the High Court for decision afresh in accordance
with law after framing the substantial question of law. The appeal is thus
allowed to the extent indicated above. It is expected that the High Court shall
decide the second appeal within a period of six months from the date of supply
of a copy of this order to it. There will be no order as to costs.