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2008 DIGILAW 362 (CHH)

REWA RAM BANCHHORE v. SAUK RAM (DEAD) BY L. Rs.

2008-12-12

D.R.DESHMUKH

body2008
JUDGMENT 1. This appeal is by the appellant/plaintiff: who is aggrieved by the reversal of the judgment and decree dated 30-10-1996 passed in his favour in Civil Suit NoA-A/94 by the 7th Civil Judge Class-II, Durg in Civil Appeal No.3-N97 by the 5th Additional District Judge. Durg by the impugned judgment and decree dated 31-3-1998. 2. Admittedly. Salikram, who was the defendant in the trial Court had executed a registered document on 12-9-1969 purporting to be a sale of land in area 2 acres out of land Khasra No.446/3 situated in Village Selood. Patwari Halka No.103. Tahsil and District Durg (henceforth 'the suit land') for a consideration of Rs.1.500/-. It is also not in dispute that the original sale-deed was not produced by the appellant/plaintiffbefore the trial Court. 3. Briefly stated the case of the appellant/plaintiff is that Salikram had sold the suit land to him by the above mentioned registered sale-deed and delivered possession. Since the defendant was interfering with his peaceful possession, he instituted Civil Suit NoA-N1994 for the relief of permanent injunction restraining the defendant Salikram from interfering with the possession of the appellant/plaintiff over the suit land. In the written statement, the defendant Salikram averred that he had taken a loan of Rs. 1,000/- from the appellant/plaintiff, who had insisted that as security for the loan he should execute a sale-deed of the suit land for a consideration of Rs. 1,500/-. Since the defendant was in dire need of money, he agreed to the execution of the document purporting to be a registered sale-deed in favour of the plaintiff and obtained a loan of Rs. 1,000/- from the plaintiff. Possession of the land was never delivered by the defendant Salikram to the plaintiff. In 1971, the defendant paid a sum of Rs. 1,500/- including interest to the plaintiff in full repayment of the loan and endorsed the said fact on the back of the sale-deed dated 12-9-1969. However, the plaintiff did not return the document to the defendant on the ground that since he had already endorsed repayment on the back of the document, it could not be used for any other purpose. Thereafter, the plaintiff obtained an ex parte judgment and decree against Salikram in Civil Suit No.124-A/81 from the Court of 4th Civil Judge Class-II, Durg. Thereafter, the plaintiff obtained an ex parte judgment and decree against Salikram in Civil Suit No.124-A/81 from the Court of 4th Civil Judge Class-II, Durg. On the basis of the above mentioned ex parte decree, the plaintiff further succeeded in getting his name mutated over the suit land. The application for setting aside the ex parte decree was dismissed by the 4th Civil Judge Class-II, Durg. However, in Miscellaneous Civil Appeal No.8/86 by the order dated 16-7-1987, the 3rd Additional District Judge, Durg set aside the said ex parte judgment and decree. It was further pleaded that instead of filing the original sale-deed, the plaintiff had fraudulently filed only a true copy thereof. It was further pleaded that the plaintiff had, pursuant to the ex parte judgment and decree dated 21-8-1982 passed in Civil Suit No. 124-A/81 ,forcibly dispossessed the defendant from the suit land. A counter claim for regaining possession of the suit land was also made. 4. The trial Court decreed the plaintiff's suit on the ground that although the defendant had in paragraph 8 of his testimony admitted that repayment of loan amount of Rs. 1,500/- to the plaintiff was made by him in the presence of Jhumuklal and Bhagatram he did not examine the above mentioned witnesses. It was, therefore, held that the defendant had failed to prove that the document dated 129-1969 was in fact a document executed as a security for the loan of Rs. 1,000/- obtained by Salikram from the plaintiff. On these premises, the trial Court while decreeing the plaintiff's suit for permanent injunction in his favour dismissed the counter claim of the defendant Salikram. 5. Being aggrieved, the defendant Salikram preferred Civil Appeal No.3A/97 before the 5th Additional District Judge, Durg. To explain non-examination of Jhumuklal and Bhagatram in the trial Court, the defendant Salikram made an application under Order 41 Rule 27 of the Code of Civil Procedure for filing the death certificates of Jhumuklal and Bhagatram revealing that Jhumuklal and Bhagatram had died on 26-11-1993 and 27-3-1977 respectively, i.e., before the evidence of the defendant had commenced. The order-sheet dated 4-3-1998 of the lower appellate Court shows that while hearing final arguments, arguments were also heard on the application under Order 41 Rule 27 of the Code of Civil Procedure. The order-sheet dated 4-3-1998 of the lower appellate Court shows that while hearing final arguments, arguments were also heard on the application under Order 41 Rule 27 of the Code of Civil Procedure. A perusal of the impugned judgment and decree passed by the lower appellate Court shows that the lower appellate Court did not consider the application under Order 41 Rule 27 of the Code of Civil Procedure while allowing the appeal and reversing the judgment and decree passed by the trial Court. 6. After the judgment dated 31-3-1998 delivered by the 5th Additional District Judge, Durg, the defendant Salikram died. This appeal was, therefore, preferred against the legal representatives of Salikram, who were made respondents. 7. This appeal was admitted on the following substantial questions of law: "1. Whether the lower appellate Court committed an error of law in holding that the sale-deed dated 12.9.1969 executed in favour of the plaintiff by the defendant is, in fact a document for security of loan and this shall vitiate its judgment and decree? 2. Whether the lower appellate Court erred in law in awarding mesne profits @ Rs.5001-P.M.?" 8. Shri Pramod Verma, learned Senior Advocate for the appellant assailed the judgment and decree passed by the lower appellate Court on the ground that the lower appellate Court did not come in close quarters with the reasonings given by the trial Court for rejecting the defence of the defendant Salikram. In other words, the lower appellate Court did not consider at all that the trial Court had rejected the defence of the defendant inter alia on the ground of non-examination of material witnesses Jhumuklal and Bhagatram by the defendant. Reliance was placed on Santosh Hazari Vs. Purushottam Tiwari (Deceased) By L.Rs. 1. 9. On the other hand, Shri D.N.Prajapati, learned counsel for the respondents/legal representatives of Salikram argued that he had moved an application under Order 41 Rule 27 of the Code of Civil Procedure before the lower appellate Court for explaining why the defendant could not examine Jhumuklal and Bhagatram by filing their death certificates which substantiated that these witnesses had expired much before the evidence of the defendant began in the trial Court. 10. Having heard the rival submissions, I have perused the record. 10. Having heard the rival submissions, I have perused the record. The lower appellate Court did not consider the reasons given by the trial Court for not relying upon the testimony of the defendant towit non-production of material witnesses Jhumuklal and Bhagatram. It also did not consider the application under Order 41 Rule 27 of the Code of Civil Procedure and the documents, i.e., death certificates filed by the defendant Salikram before examining the true nature of the document dated 12-9-1969 in the light of (a) the reasons given by the plaintiff for non-production of the original sale-deed and (b) the adverse inference drawn by the trial Court for non-examination of Jhwnuklal and Bhagatram by the defendant. The lower appellate Court thus failed in its duty by not coming in close quarters of the reasons assigned by the trial Court for not placing reliance on the defendant's evidence and also fell into error by not passing any order on the application under Order 41 Rule 27 of the Code of Civil Procedure. It is, therefore, a fit case in which the judgment and decree passed by the lower appellate Court deserves to be set aside and the matter remanded to the lower appellate Court for deciding the appeal afresh after passing an appropriate order on the application under Order41 Rule 27 of the Code of Civil Procedure filed by the defendant Salikram. 11. In the result, the appeal is allowed. The impugned judgment and decree dated 31-3-1998 passed by the 5th Additional District Judge, Durg in Civil Appeal No.3-A/97 is set aside. The matter is remanded to the lower appellate Court with a direction to pass appropriate order on the application under Order 41 Rule 27 of the Code of Civil Procedure and to decide the appeal thereafter in the light of the facts and circumstances mentioned above. Parties are directed to appear before the lower appellate Court on 29th January, 2009 either in person or through counsel. No further notice shall be necessary. On that date, the lower appellate Court shall fix a date for arguments and decide the application under Order 41 Rule 27 of the Code of Civil Procedure and the appeal on their merits within a period of one month from 29th January, 2009. Records of the Courts below be sent back to the lower appellate Court expeditiously along with a copy of this judgment. Records of the Courts below be sent back to the lower appellate Court expeditiously along with a copy of this judgment. Since the matter is being remanded under Order 41 Rule 23 of the Code of Civil Procedure to the lower appellate Court upon a preliminary point, no finding is recorded on the substantial questions of law framed by this Court. Case Remanded.