DAMODHAR NARAYAN SAWALE (D) THROUGH LRS versus SHRI TEJRAO BAJIRAO MHASKE & ORS on 4 May 2023

[2023] 6 S.C.R. 175

DAMODHAR NARAYAN SAWALE (D) THROUGH LRS

v.

SHRI TEJRAO BAJIRAO MHASKE & ORS.

(Civil Appeal No. 930 of 2023)

MAY 04, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Maharashtra Prevention of Fragmentation and Consolidationof Holdings Act, 1947 : Applicability of the Act – On facts, suit fieldcomprising 3 acres and 20 guntas – Vide registered sale deed, 2acres 20 guntas of the suit field purchased by first defendant fromsecond defendant – Remaining portion left with second defendant– Later on, the co-defendant sold the said suit field to the appellantvide registered sale deed in the year 1979 – Possession disturbedby second defendant-first respondent – Suit for possession by theappellant-plaintiff – Trial court held that appellant had notpurchased the suit field as claimed and executed only as a securityfor a money lending transaction; and that the transaction violatedthe provision under the Fragmentation Act – First appellate courtdecreed the suit for possession on the strength of title in favour ofthe appellant – In second appeal, the High Court restored the decreeof dismissal of the suit by the trial court holding that the sale ortransfer of one acre of land is sale of fragment, thus, void u/s. 9(1),and the plaintiff cannot seek possession on the basis of such sale-deed – On appeal, held: On facts, the plaint averments did notdisclose involvement of any such issue requiring a reference to acompetent authority under the Fragmentation Act – Case attemptedto be projected and proved by the second respondent is that in regardto the two sale deeds, they were never intended to be acted uponand in fact, they were never been acted upon – Furthermore, despitethe lack of foundational facts attracting the applicability of the‘Fragmentation Act’ and on the question of raising of any right orclaim by way of counter-claims, it cannot be understood as to howthe trial court and the High Court came to frame issues and considersuch issue, that too, ignoring the statutory bar of jurisdiction to gointo and decide the issues – Second defendant did not make outany case for attracting the provisions of the Fragmentation Act –

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AHigh Court erred in setting aside the judgment and decree of theFirst Appellate Court decreeing the suit and in restoring the decreeof dismissal of the suit of the trial court – Judgment passed by theHigh Court is set aside and that of the First Appellate Court isrestored – ss. 8, 9, 31, 36 A, 36 B.

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BCode of Civil Procedure, 1908 : Ord. VIII r. 6 A – Counter-claim by defendant – When can be raised – Held: A defendant couldnot be permitted to raise counter-claim against co-defendant becauseby virtue of Ord. VIII r. 6A, it could be raised by defendant againstthe claim of the plaintiff – On facts, sole, vague averment in theCwritten statement filed by the second defendant in the suit referringto the Fragmentation Act, which in no way could construe as acounter-claim capable of treating as a plaint and governed by therules applicable to plaints in terms of Ord VIII r. 6 A and enablingthe court to pronounce a final judgment in the same suit, both onthe original claim and on the counter-claim – An inter-se disputeDon the validity of the sale deed, if at all between the second andfirst defendants, could not have been considered in the subject-suit, as it would amount to adjudication of right or a claim, by wayof counter-claim by one defendant against his co-defendant.

Allowing the appeal, the CourtE

HELD: 1.1 It is not the object or purpose of the MaharashtraPrevention of Fragmentation and Consolidation of Holdings Act,1947 to totally prohibit or prevent transfer of land within anynotified ‘local area’, but it is only aimed at preventing thefragmentation of agricultural holdings and to provide for theFconsolidation of agricultural holdings for the purpose of the bettercultivation thereof. [Para 18][191-E]

Conclusion

1.2 Though in a suit a defendant is entitled to raisealternative inconsistent plea he could not be permitted to raisepleas which are mutually destructive of each other and raisingGsuch pleas would only work out to his detriment. [Para 19][191-G-H]

1.3 While entertaining the contentions founded on theFragmentation Act raised by the second defendant, the trial courtas also the High Court have not bestowed attention to theH

statutory bar of jurisdiction under Section 36A of the Act. [Para20][192-A-B]

1.4 The case attempted to be projected and proved by thesecond respondent is that in regard to sale deed dated 04.07.1978and the sale deed dated 21.04.1979 (Ext.128) they were neverintended to be acted upon and in fact, they were never been actedupon. If that is accepted, then, there is absolutely no question ofapplicability of the provisions of ‘the Fragmentation Act’ as theywould apply only in the eventuality of an actual transfer of land orpartition of land subject to the satisfaction of other conditions.[Para 22][193-B-D]

1.5 A conjoint reading of Section 36A and 36B of theFragmentation Act would reveal that when a suit is instituted in aCivil Court, the Court concerned has to consider if the suitinvolves any issue(s) which is/are required to be settled, decidedor dealt with by any competent authority to settle, decide or dealtwith, such issues under the said Act. If it does, then after stayingthe suit the said issue(s) is to be referred to such competentauthority for determination. Apparently, no such considerationhad been made by the trial court as also by the High Court. [Para23][193-D-E]

1.6. The words ‘if any suit, instituted in Civil Court’ and‘involves any issues’ employed in Section 36B of theFragmentation Act would undoubtedly point to the fact thatinvolvement or otherwise of such issues mentioned under thesection in ‘the suit instituted in a Civil Court’ is the factor decidingthe applicability of the procedures prescribed under Section 36B,of the Fragmentation Act. Therefore, the question whether suchissue(s) falling under Section 36B of the Fragmentation Act isinvolved or not was to be decided with reference to the avermentsin the plaint. On their own the plaint averments did not discloseinvolvement of any such issue(s) requiring a reference to acompetent authority under the Fragmentation Act. Since the issueis whether the suit involves such issue(s), we will refer to thewritten statement as well. The sole, vague averment in the writtenstatement filed by the second defendant in the suit referring tothe Fragmentation Act, which in no way could construe as acounter-claim capable of treating as a plaint and governed by the AB

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Arules applicable to plaints in terms of Order VIII Rule 6 A, CPCand enabling the court to pronounce a final judgment in the samesuit, both on the original claim and on the counter-claim. Thatapart, the case projected and proved by the second defendantthat Ext.128 sale deed and sale deed dated 04.07.1978 were neverintended to be acted upon. Thus, going by his mutually destructiveBpleas as well, no case for attracting the provisions of ‘theFragmentation Act’ was made out by the second defendant. [Para24][194-A-F]

1.7 Despite the lack of foundational facts attracting theapplicability of the ‘Fragmentation Act’ (in fact, there is no seriousCconsideration of such aspects by the trial court and the HighCourt) and the position revealed from the said decisions and theprovisions and on the question of raising of any right or claim byway of counter-claims, it cannot be understood as to how the trialcourt and the High Court came to frame issues and consider suchDissue(s), that too, ignoring the statutory bar of jurisdiction to gointo and decide the issues. [Para 27][195-B-D]

1.8 A careful scanning of the impugned judgment wouldreveal that virtually, the High Court considered the validity ofthe sale deed dated 04.07.1978 executed by the second defendantEin favour of the first defendant under ‘the Fragmentation Act’,without directly framing an issue precisely on the same and then,decided the validity of the sale deed dated 21.04.1979 executedby the second defendant in favour of the plaintiff. It is held thatdefendant could not be permitted to raise counter-claim againstco-defendant because by virtue of Order VIII Rule 6A, CPC itFcould be raised by a defendant against the claim of the plaintiff.In the instant case, no such counter-claim, which can be treatedas a plaint in terms of the said provision and thereby, enablingthe court to pronounce a final judgment in the same suit, both onthe original claim and on the counter claim, was filed by the secondGdefendant. That apart, indisputably, the second defendant did notdispute the execution of the registered sale deed dated04.07.1978 by him in favour of the first defendant and in his writtenstatement the second defendant had only stated that accordingto the provisions of the Fragmentation Act the plaintiff was not H

entitled to any relief. When that be so, legally how can the HighCourt hold the sale deed dated 04.07.1978 executed by the seconddefendant in favour of the first defendant, void under theprovisions of the Fragmentation Act without precisely framingan issue and then, based on it, going on to consider the validity ofExt. 128 sale deed dated 21.04.1979 executed by the seconddefendant in favour of the plaintiff, even-after noting the findingof the First Appellate Court that as relates the sale of one acre ofland under Ext.128 sale deed the second defendant did not haveany grievance and then, observing, in tune with the same, thatthe second defendant did not dispute that he sold one acre ofland to the plaintiff as per Ext.128 sale deed for the considerationof Rs. 3000/- and had shown readiness and willingness to deliverthe possession of it to the plaintiff. To make matters worse, theHigh Court failed to consider the crucial issue whether the plaintiffis entitled to possession of the suit land on the strength of theregistered Ext.128 sale deed executed by the defendants.[Para 30][197-A-G]

1.9 The decision of the High Court on the validity of thesale transaction covered under the sale deed dated 04.07.1978executed by the second defendant in favour of the first defendant,in terms of the provisions under the Fragmentation Act (whenthat question was not legally available to be considered in thesubject suit) and the virtual declaration of the said sale as void,are absolutely unsustainable. It is the product of erroneousassumption of jurisdiction and also erroneous and perverseappreciation of evidence. It being the foundation for holding theregistered sale deed dated 21.04.1979 (Ext.128) as void underSub-section (1) of Section 9 of the Fragmentation Act, it isunsustainable. [Para 31][197-H; 198-A-C]

Issues

1.10 As regards, the grievance of the second defendentwith respect to the balance extent of 2 acres and 20 guntasinvolved in the transaction; in the context of the contentions raisedby the second defendant viz., the first respondent in this appeal,what is relevant and crucial is not only the factum of registrationof Ext.128 and its execution by the second defendant but alsothe admission of execution of sale deed dated 04.07.1978 by himin favour of the first defendant. True that the second defendant ABC

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Acontended that it was executed as a collateral security for a moneylending transaction. Evidently, the High Court did not frame thevalidity of the sale deed dated 04.07.1978 executed by the seconddefendant in favour of the first defendant as a question of lawthough the trial court also arrived at a finding on this issue withoutframing it as a specific issue. The indisputable fact is that theBsaid sale deed dated 04.07.1978 was admittedly, executed andregistered about nine (9) months prior to the execution andregistration of Ext. 128 sale deed. Ext. 128 would reveal that itinvolves the entire extent of 3 acres 20 guntas in Survey No. 20/2 of G village and the first defendant is also an executant of theCsame. The observation and finding of the High Court in the firstlimb of paragraph 24 of the impugned judgment that the seconddefendant did not dispute the sale of one acre of land to the plaintiffas per Ext. 128 for the consideration of Rs. 3000/- would indicatethat the balance amount of Rs. 7000/- was the consideration forthe balance extent of land covered under Ext. 128. Since theDvalidity of the sale deed dated 04.07.1978 was not an issue/question that could be raised by the second defendant againstthe first defendant in the subject suit and was rightly, not raisedas an issue, the first defendant not only did not dispute the saleof such extent to the plaintiff but admitted the joint execution of EExt. 128 and receipt of sale consideration, as incorporated inExt. 128 and since the second defendant got no case that he hadassailed the validity of the sale deed dated 04.07.1978 eitherbefore any competent authority or competent Civil Court thisquestion needs no further elaboration. An inter-se dispute onthe validity of the sale deed dated 04.07.1978, if at all betweenFthe second and first defendants, could not have been consideredin the subject-suit, for the reasons already mentioned as it wouldamount to adjudication of right or a claim, by way of counter-claimby one defendant against his co-defendant. Finding on its voidnessunder the Fragmentation Act was already held as unsustainable.G[Para 34][200-B-H; 201-A-B]

1.11 By virtue of Section 54, of the Transfer of PropertyAct and Section 17 of the Registration Act and since theimmovable property was worth more than Rs. 100/- Ext.128 wasreduced in writing and registered. The intention of the partiesHare also reflected specifically in Ext.128 and at the same, nothing reflecting a contraintention not to pass the title and ownership inpresent even impliedly therein. In other words, the need to takeinto consideration the surrounding circumstances and the conductof parties in deciding the passing of title would arise only if therecitals in the document are indecisive and ambiguous. The oralevidence of the second defendant could not override theregistered Ext. 128 sale deed, as held by the First Appellate Courtin the facts, circumstances and evidence on record in this case.In such circumstances, no other question(s) need be considered.The High Court committed a serious error based on perverseappreciation of evidence, in setting aside the judgment and decreeof the First Appellate Court decreeing the subject suit and inrestoring the decree of dismissal of the suit of the trial court.[Para 35][201-E-H]

1.12 The judgment and final order in Second Appeal passedby the High Court restoring the decree of the Civil Judge is setaside. The judgment and decree of the Additional District Judgeis restored. [Para 36][202-A-B]

Charanjit & Ors. v. State of Punjab & Anr. (2013) 11SCC 163 : [2013] 10 SCR 688; Adambai SulemanbhaiAjmeri & Ors. v. State of Gujarat (2014) 7 SCC 716 :[2014] 7 SCR 48; Jag Mohan Chawla and Anr. v. DeraRadha Swami Satsang & Ors. (1996) 4 SCC 699 :[1996] 2 Suppl. SCR 509; Rohit Singh and Ors. v. Stateof Bihar (2006) 12 SCC 734 : [2006] 7 Suppl. SCR278 – referred to.

Case Law Reference

From the Judgment and Order dated 30.10.2015 of the High Courtof Judicature at Bombay at Nagpur in SA No. 435 of 1995.

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AMs. Apurva, Shivaji M. Jadhav, Brij Kishor Sah, M/s S. M. Jadhavand Company, Advs. for the Appellants.

Kishor Lambat, Ms. Suja Joshi, Ms. Kashmira Lambat, SachinPahwa, M/s Lambat and Associates, Advs. for the Respondents.

The Judgment of the Court was delivered byB

C. T. RAVIKUMAR, J.

1. This appeal filed under Article 136 of the Constitution of Indiais directed against the judgment and final order dated 30.10.2015 in SecondAppeal No.435 of 1995 passed by the High Court of Judicature at Bombay,CNagpur Bench, whereby and whereunder the High Court reversed thejudgment and decree of the Court of Additional District Judge, Buldana,in Regular Civil Appeal No.98 of 1987, reversing the judgment and decreeof dismissal passed by the Court of Joint Civil Judge, Junior Division,Chikhli in Regular Civil Suit No.257 of 1985 (originally numbered asRegular Civil Suit No.104 of 1979 on the file of the Court of Civil Judge,DSenior Division, Buldana, before its transfer). In short, as per theimpugned judgment, the High Court restored the decree of dismissal ofthe suit by the trial Court. The stated Regular Civil Suit is one forpossession of suit land on the strength of title.

2. Shorn of details, the plaint averments for seeking possession ofEthe suit land, which is a field comprised in Khasra No.20/2, having anextent of 3 Acres and 20 guntas in village Gangalgaon, Taluk Chikhli,District Buldana, are as under: - Original Defendant Nos.1 and 2 viz., Ramakrishna Ganpat Mhaskeand Tejra Bajirao Mhaske, have sold the above-described suit field inFfavour of the plaintiff as per registered sale deed dated 21.04.1979(Exhibit-128). Soon on its execution the plaintiff was put in possession.On 25.04.1979, the second defendant started disturbing his possession.Suit was then filed on 21.05.1979. In view of the registered sale deed(Exhibit 128) he obtained absolute title over the suit land and in suchcircumstances, the second defendant who sold the same for dischargingGdebts and family needs got no right or reason to disturb his peacefulpossession. The total sale consideration of Rs.10,000/- was given todefendants for the aforesaid entire extent of 3 acres and 20 guntas asthe first defendant obtained title over 2 acres and 20 guntas out of theaforesaid total extent from the second defendant as per registered saleHdeed dated 04.07.1978 and the second defendant remained as the owner

in possession of the balance one acre. It is his case that the seconddefendant had utilised the sale consideration passed on to him for differentpurposes, including to pay his debts. It is also relevant to note that theoriginal petitioner in the SLP, from which this appeal arises, viz., theplaintiff, died during pendency of this proceeding and subsequently, hislegal representatives got substituted as petitioners. Ergo, they are jointlydescribed hereafter as ‘appellants’, wherever, such reference is required.On the death of the first defendant/the original second respondent duringthe pendency of the Second Appeal, his legal representatives wereimpleaded as additional respondents and they are respondent Nos. 2 to 6herein. For the non-compliance with the order of the Hon’ble ChamberJudge, the SLP stood dismissed qua respondent No. 6, as per orderdated 22.11.2017. At the stage of second appeal the legal heirs of thedeceased son of the second defendant viz., the first respondent herein,were impleaded as respondents therein and they are respondents 7 to 9herein.

3. The first defendant filed a written statement endorsing the claimand contentions of the plaintiff and he would also state therein that afterexecuting the sale deed, himself and the second defendant (the firstrespondent herein) parted with the possession of the suit land and then,the second defendant (the first respondent herein) turned dishonest andstarted disturbing the possession of the plaintiff. However, the seconddefendant (the first respondent herein) resisted the suit by filing writtenstatement and denying the claims and contentions of the plaintiff. Hispleadings revealed from the written statement, in nutshell, read thus:- The sale deed dated 21.04.1979 (Exhibit 128) is a sham documentwhich was never intended to be acted upon and in fact, it was neverbeen acted upon. His case, while admitting the execution of sale deed(Exhibit 128), is that though it was executed as a sale deed, what hadactually transpired was nothing but an execution of sale deed solely as acollateral security to a money lending transaction viz., for a loan ofRs.1000/- with a promise to re-pay an amount of Rs.1500/- within 12months. It is to be noted that in the written statement, the seconddefendant (the first respondent herein) further contended that theregistered sale deed executed in favour of the original first defendantwas also of the very same nature. He would further plead that in thesaid transactions also, in fact there was no passing of sale considerationfrom the purchasers as in the case of Exhibit 128 sale deed so as to AB

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Aconstitute a valid sale and the other such sale deeds were also executedwithout any intention to effect sale of the properties, at the time ofborrowing money. To contend that the plaintiff is disentitled to any reliefas sought for, he would also raise two other contentions; firstly, based onthe provisions of Maharashtra Prevention of Fragmentation andConsolidation of Holdings Act, 1947 (hereinafter referred to asB‘Fragmentation Act’) and secondly, in the light of the provisions underSection 10 of the Bombay Money Lenders Act, 1946, which get attractedowing to the facts that he is an original farmer owning only less than 2hectares of land and that his annual income is less than Rs.1200/-.

4. Based on the rival pleadings, the trial Court formulated theCfollowing issues and answered them in the following manner, as can beseen from paragraph 6 of its judgment:-

ISSUES

FINDINGS.

1. Does the Plaintiff provesIn the negative.Dthat he purchased the suitfield from Defendants asalleged?

2. Does he further provesEthat the suit sale deed is forlegal necessity?

In the negative.

3. If the Plaintiff entitled toIn the negative.the possession of the suitFfield along with enquiry intomesne.

4. Does the Defendant No.2In the affirmative.proves that the suit saleGdeed is bogus, sham andnominal as alleged?5. Does the further provesIn the affirmative.that the Plaintiff deals inH

DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRITEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]

5. On the basis of the findings returned on the issues thusformulated, the trial Court came to the conclusions that the plaintiff hadnot purchased the suit field as claimed, that he had failed to prove thatthe execution of the sale deed was for a legal necessity of the seconddefendant. Further, it came to the conclusion that the sale deed was asham document and it was executed only as a security for a moneylending transaction and consequently, the original suit was dismissed withcosts.

6. In Regular Civil Appeal No.98 of 1987, filed by the unsuccessfulplaintiff, the First Appellate Court framed the following points for 186SUPREME COURT REPORTS

[2023] 6 S.C.R.

7. Thus, it is evident that upon finding that the trial Court hadvirtually ignored the legal impact and effect of registered sale deed (Exhibit128), in respect of suit land executed in favour of the appellant thereinviz., the plaintiff, the First Appellate Court considered the issuesFformulated by focusing that aspect. True that for upholding the sale deedviz. (Exhibit 128), the First Appellate Court had given due weight to thenotice dated 27.04.1979 (Exhibit 113), virtually lawyer notice issued bythe second defendant immediately after the transaction, in the name ofthe plaintiff and held that it would lend support to the factum of saleGeffected through sale deed (Exhibit 128). The First Appellate Court onsuch consideration and on appreciation of the materials on record heldthat the second defendant had failed to prove that the sale transactionwas an outcome of money lending transaction and that the sale deedwas nominal in nature. Consequently, the appeal was allowed, thejudgment and decree of the Trial Court was set aside and the suit forH

possession on the strength of title was decreed in favour of the plaintiff(the appellant therein).

8. It is feeling aggrieved and dissatisfied with the said judgmentand decree that the Second Appeal No.435 of 1995 was filed by theoriginal second defendant viz., the first respondent herein, which ultimatelyculminated in the impugned judgment.

9. A perusal of the impugned judgment would reveal that the HighCourt re-framed the substantial questions of law on 15.10.2015 ashereinunder: - [1] Whether the plaintiff has established his entitlement for adecree of possession of the suit property on the basis of thesale deed dated 21.04.1979 at Exh.128 executed by thedefendant Nos.1 and 2?

[2] Whether the defendant No.2 has established that the saledeed at Exh.128 was nominal and by way of collateral securityand the said transaction was hit by the provisions of Section8 of the Maharashtra Prevention of Fragmentation andConsolidation of Holdings Act?

[3] While reversing the findings recorded by the trial Court,whether the lower appellate Court has ignored the findingsrecorded by the trial Court on the material facts in the lightof undisputed factual position?”

10. Even though the powers under Article 136 of the Constitutionof India must be exercised sparingly, yet there is absolutely nothing inthe said Article which prohibits the Supreme Court from reversing evenconcurrent findings of the fact by courts below, if it is of the opinion onthe basis of the evidence on record, that affirming the findings of thecourts below would result in a grave miscarriage of justice. It was soheld by this Court in Charanjit & Ors. v. State of Punjab & Anr.[1]asalso in Adambai Sulemanbhai Ajmeri & Ors. v. State of Gujarat[2].Therefore, if a relevant material legally brought on record and the questionof law arising out of its existence were not considered by the High Court,despite its due consideration by the First Appellate Court, while reversingthe judgment founded on such consideration this Court has necessarily 1 (2013) 11 SCC 163

2 (2014) 7 SCC 716

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Ato consider the same in invocation of the power under Article 136. Whileconsidering this appeal, in that view of the matter, it is only proper andprofitable to refer to the following crucial and relevant facts obtained inthe case:

(i) Exhibit 128 is a registered sale deed.B

(ii) Its execution is admitted by both the original defendants. (Truethat the second defendant (first respondent herein) contends thatit was executed as a collateral security at the time of a moneylending transaction).

(iii) The second defendant (first respondent herein) has alsoCadmitted execution of registered sale deed in favour of defendantNo. 1 (earlier in point of time than Exhibit 128) in respect of 2acres and 20 guntas. (Here also, the second defendant claimedthat the sale deed was executed as a collateral security for themoney borrowed and therefore repayable to him along with theDquantified fixed interest thereon).

11. We have already referred to the issues/points formulated bythe courts below and the findings returned by the respective courts whichformed the basis for their respective judgments. Bearing in mind thedecisions referred supra and also the relevant facts available, as notedEabove and also the relevant provisions under the relevant enactments, tobe referred to hereafter, we may proceed to consider this appeal.

12. As noted earlier, after reversing the judgment and decree ofthe First Appellate Court, the High Court restored the decree of the trialCourt. In this context, it is apt to note the re-framed substantial questionFof law No. 3 by the High Court, extracted above, that carries the querywhether, while reversing the findings recorded by the trial Court, thelower appellate Court had ignored the findings recorded by it on thematerial facts in the light of undisputed factual position. We may hastento add here that a bare perusal of the impugned judgment would revealthat after framing such a question of law the High Court did the veryGseemingly attributed act inasmuch as it did not consider the legal impactand effect of Ext. 128, registered sale deed, which was taken intoconsideration by the First Appellate Court, while reversing the judgmentand decree of the First Appellate Court.

13. A scanning of the trial Court judgment would reveal indubitablyHthat despite the admission of the execution and registration of Exhibit

128 sale deed dated 21.04.1979 by the second defendant in favour ofthe plaintiff and also that of the sale deed dated 04.07.1978 by him to thefirst defendant, it had failed to consider the legal effect and impact ofexecution and registration of such a sale deed in view of the provisionsunder the Transfer of Property Act, 1882, as also the Registration Act,1908, and sans such consideration accepted the second defendant’scontention that it is a sham document. Paragraph 7 of the judgment ofthe trial Court would reveal that despite the admission of execution andregistration of Ext. 128 sale deed dated 21.04.1979 by the seconddefendant as also by the first defendant, the trial Court held that theburden of proving the factum of execution of sale deed and passing ofthe consideration amount was on the plaintiff. The trial Court had alsofailed to consider the relevance and application of Section 92 of theIndian Evidence Act, 1872 while appreciating the oral evidence againstExt. 128. Evidently, the trial Court accepted the case of the seconddefendant that the said sale deed was one executed as a collateral securityto a money lending transaction and that it was never intended to beacted upon. The trial Court has also held the sale deed virtually invalidby accepting the contention that the transaction violated the provisionunder Section 8 of the Fragmentation Act and in that regard the saledeed dated 04.07.1978 executed between defendant Nos. 1 and 2 washeld as one creating a ‘fragment’ and therefore, violating the prohibition.This was done without looking into the question as to its jurisdiction toentertain and adjudicate upon such a plea in view of the statutory bar ofjurisdiction under Section 36A of the Fragmentation Act. In that regardit is noteworthy that nothing was specifically mentioned in paragraph 14or anywhere else in the written statement filed by the second defendantregarding the violation of the provisions under the Fragmentation Actand, in fact, only vague reference was made on that aspect in paragraph16 reproduced as under: - “16. …In event, according to provision of Consolidation ofAct and Prevention of Fragmentation Act, the plaintiff notentitled to any relief.”

14. In view of the aforementioned facts as also taking note of thecontentions raised on behalf of the contesting respondents, in support ofthe impugned judgment, that the First Appellate Court failed to considerat all the voidness of the sale transaction of 2 acres and 20 guntas betweenoriginal defendants 1 and 2, its impact on the sale of consequentially AB

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Acreated ‘fragmentation’ of one acre by the second defendant and thewhole sale transaction effected under Exhibit 128 sale deed by operationof the Fragmentation Act and further that the said aspect was rightlyconsidered by the High Court, we think it only proper to deal with thatmatter appropriately.

B15. At the outset, we may say that there is dichotomy betweenthe contention of the first respondent/ the second defendant founded onthe Fragmentation Act as mentioned above and also his contention ofabsolute absence of a transaction partaking the real nature of sale. Thisis because Section 9 (1) of the Fragmentation Act makes void only thetransfer or partition of any land contrary to the provisions of the saidCAct. The word ‘transfer’ is not defined under the Fragmentation Actthough the expression ‘land’ has been defined thereunder. As per Section2 (5) of the Fragmentation Act, the term ‘land’ means, ‘agricultural landwhether alienated or unalienated’. In the said circumstances, to knowthe meaning of the words ‘transfer of any land’ used in Section 9 (1) ofDthe Fragmentation Act, one may have to see the definition of ‘transferof property’ under Section 5 of the ‘Transfer of Property Act, 1882,(hereinafter referred to as, the TP Act’), which reads thus:-

5. “Transfer of property” defined. —In the following sections“transfer of property” means an act by which a living personEconveys property, in present or in future, to one or more otherliving persons, or to himself, [or it himself] and one or moreother living persons; and “to transfer property” is to performsuch act.

[in this section “living person” includes a company orFassociation or body of individuals, whether incorporated ornot, but nothing herein contained shall affect any law for thetime being in force relating to transfer of property to or bycompanies, associations or bodies of individuals.]

16. In the contextual situation it is also relevant to refer to theGdefinition of ‘sale’ given under Section 54 of the TP Act, which readsthus:-

54. “Sale” defined.—”Sale” is a transfer of ownership inexchange for a price paid or promised or part-paid and part-promised.

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17. The term ‘transfer’ is a word in a broader sense and the word‘sale’ is a specific word. Sale, going by the definition under T.P. Act,presupposes transfer from one person to another of the right in propertyand in other words, in sale, the ownership of the property is transferred.A conjoint reading of Section 54 of the TP Act and Section 17 of theIndian Registration Act, 1908, mandates that transfer of ownership ofany land worth more than Rs.100/- shall be effected by a registereddeed. Therefore, transfer of a land worth more than Rs.100/- by aregistered deed implies transmutation of all rights as the vendor possessedin the property concerned. We are not oblivious of the fact the mereregistration of a document is no proof of its execution. We will deal withthis aspect a little later. It will not be inappropriate to look into the objectof the Fragmentation Act, in the context of the contentions. It runs asunder:- “Whereas it is expedient to prevent the fragmentation ofagricultural holdings and to provide for the consolidation ofagricultural holdings for the purpose of the better cultivationthereof;”

18. Thus, obviously, it is not the object or purpose of theFragmentation Act to totally prohibit or prevent transfer of land withinany notified ‘local area’, but it is only aimed at preventing thefragmentation of agricultural holdings and to provide for the consolidationof agricultural holdings for the purpose of the better cultivation thereof.

19. In the context of the above mentioned rival pleadings,contentions and the position revealed from the facts and the provisions,the question to be considered is whether the second defendant hereinhad made out any case for attracting the provisions of the FragmentationAct /or in other words, whether the trial Court was right in applying theprovisions under the said Act and the High Court was legally correct inrestoring the decree of the trial Court after reversing the judgment anddecree of the First Appellate Court, in view of the mutually annihilativepleas taken up by the second defendant viz., the first respondent hereinand accepted by the trial Court and the High Court. Contextually, it isapposite to state that though in a suit a defendant is entitled to raisealternative inconsistent plea he could not be permitted to raise pleaswhich are mutually destructive of each other and raising such pleaswould only work out to his detriment.

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A20. Evidently, while entertaining the contentions founded on theFragmentation Act raised by the second defendant, the trial Court asalso the High Court have not bestowed attention to the statutory bar ofjurisdiction under Section 36A of the Fragmentation Act which readsthus:- B[36A. (1) No Civil Court or Mamlatdar’s Court shall havejurisdiction to settle, decide or deal with any question whichis by or under this Act required to be settled, decided or dealtwith by the State Government or any officer or authority.

21. In the above context, it is also relevant to refer to Section 36CB (1) of the Fragmentation Act. It reads as under:

[36B. (1) If any suit instituted in any Civil Court orMamlatdar’s Court involves any issues which are required tobe settled, decided or dealt with by any authority competentto settle, decide or deal with such issues under this ActD(hereinafter referred to as the ‘competent authority’) the CivilCourt or Mamlatdar’s Court shall stay the suit and refer suchissues to such competent authority for determination.

22. It is also worthwhile in the contextual situation to refer toSection 9 of the Code of Civil Procedure, 1908 (hereinafter referred toEas, ‘the CPC’), which confers jurisdiction upon the Civil Courts todetermine all disputes of civil nature, unless the same is barred under astatute, either expressly or by necessary implication. We shall not beoblivious of the fact that the second defendant had not so far approachedthe competent authority under the Fragmentation Act to nullify the actionundertaken under the conveyance, resorting to the remedy contemplatedFunder the Fragmentation Act, going by the materials on record. At anyrate, there is no such case for him. We made this statement because thefirst proviso to Section 9(3) of the Fragmentation Act would reveal thatthe automatic voidness would not be attracted to a transfer of landcontrary to the provisions of the Fragmentation Act, if it was made on orGafter 15[th] day of November, 1965 and before the date of commencementof Maharashtra Prevention of Fragmentation and Consolidation ofHoldings (Amendment) Act, 2017 and that apart, Section 31, referredtherein, which puts bar for sale, makes it clear under clause (iii) Sub-section (3) thereof, that the said bar would not apply to any land which isto be transferred to an agriculturist, in its entirety provided such transferHis not creating a fragment. We may hasten to add here that we shall not be understood to have held that the subject suit involves any issue(s)which is required to be settled, decided or dealt with any authoritycompetent to settle, decide or deal with such issue under theFragmentation Act. As a matter of fact, the very applicability of theFragmentation Act itself on sale transactions would depend upon thequestion whether the area in question falls under a Municipal Council ornot and if it does not, then on the further question as to whether it fallswithin a ‘local area’ notified under the Fragmentation Act. Above all, thecase attempted to be projected and proved by the second respondent isthat in regard to sale deed dated 04.07.1978 and the sale deed dated21.04.1979 (Ext.128) they were never intended to be acted upon and infact, they were never been acted upon. If that is accepted, then, there isabsolutely no question of applicability of the provisions of ‘theFragmentation Act’ as they would apply only in the eventuality of anactual transfer of land or partition of land subject to the satisfaction ofother conditions.

23. A conjoint reading of Section 36A and 36B of the FragmentationAct would reveal that when a suit is instituted in a Civil Court, the Courtconcerned has to consider if the suit involves any issue(s) which is/arerequired to be settled, decided or dealt with by any competent authorityto settle, decide or dealt with, such issues under the said Act. If it does,then after staying the suit the said issue(s) is to be referred to suchcompetent authority for determination. Apparently, no such considerationhad been made by the trial Court as also by the High Court.

24. Taking note of the fact that the regular civil suit is of the year1979, at this distance of time and also for the reasons stated hereinaboveand to be unfolded hereinafter, we are not inclined to remand the matterto decide the question whether the second defendant/ the first respondentherein had succeeded in establishing that the subject suit involves anyissue required to be settled, decided or dealt with by any competentauthority under the said Act and therefore the subject suit was to bestayed as mandated under Section 36B of the Fragmentation Act andsuch issue was to be referred to such competent authority fordetermination. The well-nigh settled position is that the jurisdiction of theCourt has to be determined based on the averments in the plaint and itcannot be determined only on the basis of the uncorroborated avermentsmade in the written statement. This position is unquestionably applicablein the case on hand in view of the specific wordings under Section 36B

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Aof the Fragmentation Act viz., if any suit instituted in any Civil CourtorMamlatdar’s Court involves any issues whichare required to be settled,decided or dealt with by any authority competent to settle, decide ordealt with under this Act. The words ‘if any suit, instituted in Civil Court’and ‘involves any issues’ employed in Section 36B of the FragmentationAct would undoubtedly point to the fact that involvement or otherwiseBof such issues mentioned under the section in ‘the suit instituted in aCivil Court’ is the factor deciding the applicability of the proceduresprescribed under Section 36B, of the Fragmentation Act. Therefore, thequestion whether such issue(s) falling under Section 36B of theFragmentation Act is involved or not was to be decided with referenceCto the averments in the plaint. On their own the plaint averments did notdisclose involvement of any such issue(s) requiring a reference to acompetent authority under the Fragmentation Act. Since the issue iswhether the suit involves such issue(s), we will refer to the writtenstatement as well. We have already referred to the sole, vague avermentin the written statement filed by the second defendant in the suit referringDto the Fragmentation Act, which in no way could construe as a counter-claim capable of treating as a plaint and governed by the rules applicableto plaints in terms of Order VIII Rule 6 A, CPC and enabling the courtto pronounce a final judgment in the same suit, both on the original claimand on the counter-claim. That apart, we have also already noted theEcase projected and proved by the second defendant that Ext.128 saledeed and sale deed dated 04.07.1978 were never intended to be actedupon. Thus, going by his mutually destructive pleas as well, no case forattracting the provisions of ‘the Fragmentation Act’ was made out bythe second defendant.F25. In the above context the decision of this court in Jag MohanChawla and Anr. v. Dera Radha Swami Satsang & Ors.[3] is noteworthy.It was held therein that in sub-rule (1) of Rule 6A, CPC the language isso couched with words of wide width as to enable the parties to bring hisown independent cause of action in respect of any claim that would besubject matter of an independent suit. It is no longer confined to moneyGclaim or to cause of action of the same nature as original cause of actionof the plaintiff and it need not relate to or be connected with the originalcause of action or matter pleaded by the plaintiff. It was further heldthat the words “any right or claim in respect of a cause of action accruingwith the defendant” would show that the cause of action from which theH3 (1996) 4 SCC 699

counter claim arises need not necessarily arise from or have any nexuswith the cause of action of the plaintiff.

26. The decision of this court in Rohit Singh and Ors. v. State ofBihar[4] also assumes relevance in the above context. This court heldthat a defendant could not be permitted to raise counter-claim againstco-defendant because by virtue of Order VIII Rule 6A, CPC, it couldbe raised by defendant against the claim of the plaintiff.

27. Now, it is required to be noted that despite the lack offoundational facts attracting the applicability of the ‘Fragmentation Act’(in fact, there is no serious consideration of such aspects by the trialCourt and the High Court) and the position revealed from the aforesaiddecisions and the provisions and on the question of raising of any right orclaim by way of counter-claims, we are at a loss to understand as tohow the trial Court and the High Court came to frame issues and considersuch issue(s), that too, ignoring the statutory bar of jurisdiction to go intoand decide, issue No.9 framed by the trial Court, as extracted inparagraph 4 hereinabove and issue No. 2 re-framed by the High Court,as extracted in paragraph 9 hereinabove.

28. As relates issue No. 9, framed by the trial Court, at the risk ofrepetition, we will state that in regard to ‘the Fragmentation Act’ only avery vague plea was taken in the written statement by the seconddefendant viz., “In event, according to the provisions of Consolidation ofAct and Prevention of Fragmentation Act, the plaintiff is not entitled toany relief.” Thus, when the indisputable position is that no counter-claim,within the meaning of Order VIII Rule 6A, CPC was made by the seconddefendant and no averment whatsoever was made specifically in thewritten statement filed by him how such an issue as to whether ‘he hadproved to be a marginal owner’ in the light of the ‘Fragmentation Act’arise for consideration. This is because the well-nigh settled position oflaw is that one could be permitted to let in evidence only in tune with hispleadings. We shall not also be oblivious of the basic rule of law ofpleadings, founded on the principle of secundum allegata et probate,that a party is not allowed to succeed where he has not set up the casewhich he wants to substantiate. Whether the area in question is a ‘localarea’ notified under the ‘Fragmentation Act’ so as to have application ofthe provisions of the said Act, even if it is so, whether the sale transactionof one acre by the second defendant is legally permissible or could be 4 (2006) 12 SCC 734

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Aregularized etc., were not raised or considered, as is evident from thejudgment of the trial Court. This issue was considered by the trial Courtin paragraph 26 thereof thus: - “26. So far as issue no. 2 (sic.no.9) is concerned, admittedly,the Defendant No. 2 is marginal owner of the suit property.BSo, under the section 8A of the fragmentation Act, the saledeed on Exh-128 in regard to the suit property executed bythe Defendant No. 2 in respect of 1 acre of land as perPlaintiff’s case is barred by this section. So, section offragmentation A it also is applicable to the legality of the saledeed Exh. 128. Therefore, issue No. 9 is required to be decidedCin favour of the Defendant No. 2 and I therefore, answerissue No. 9 in the affirmative.”

29. Now, we will refer to issue No. 2 re-framed by the HighCourt in regard to the application of the ‘Fragmentation Act’. Beforedealing with the matter any further, it is only appropriate to refer to theDfollowing recital from paragraph 24 of the impugned judgment of theHigh Court:- “24. The defendant No. 2 does not dispute that he had soldone acre of land to the plaintiff by the sale deed at Ext. 128for the consideration of Rs. 3,000/- and he has shown hisEreadiness and willingness to deliver the possession of it tothe plaintiff.”

Obviously, the First Appellate Court also arrived at the same findingin respect of the said extent of land and this fact has been duly takencare of by the High Court in paragraph 15 of its judgment. Even after,Ffinding as such the High Court interfered with that part of Ext. 128 saledeed and held it as void under sub-section (1) of Section 9 of the‘Fragmentation Act’ as if a claim by way of counter-claim was made bythe second defendant. The High Court, in paragraph 24 of the impugnedjudgment held thus:-G“24. …However, the sale or transfer of one acre of land outof Survey No. 20/2 by the registered sale-deed at Exhibit 128is the sale of fragment, which is hit by Section 8 of the saidAct, and such sale becomes, therefore, void under sub-section(1) of the Section 9 therein. The second portion of thesubstantial question of law at Serial No. [2] is answeredH

accordingly. The plaintiff cannot, therefore, seek possessionon the basis of such sale-deed.

30. Thus, a careful scanning of the impugned judgment wouldreveal that virtually, the High Court considered the validity of the saledeed dated 04.07.1978 executed by the second defendant in favour ofthe first defendant under ‘the Fragmentation Act’, without directly framingan issue precisely on the same and then, decided the validity of the saledeed dated 21.04.1979 executed by the second defendant in favour ofthe plaintiff. We have already taken note of the decision of this Court inRohit Singh’s case (supra), wherein it is observed that a defendant couldnot be permitted to raise counter-claim against co-defendant becauseby virtue of Order VIII Rule 6A, CPC it could be raised by a defendantagainst the claim of the plaintiff. Be that as it may, in the instant case, nosuch counter-claim, which can be treated as a plaint in terms of the saidprovision and thereby, enabling the court to pronounce a final judgmentin the same suit, both on the original claim and on the counter-claim, wasfiled by the second defendant. That apart, indisputably, the seconddefendant did not dispute the execution of the registered sale deed dated04.07.1978 by him in favour of the first defendant and in his writtenstatement the second defendant had only stated that according to theprovisions of the Fragmentation Act the plaintiff was not entitled to anyrelief. When that be so, legally how can the High Court hold the saledeed dated 04.07.1978 executed by the second defendant in favour ofthe first defendant, void under the provisions of the Fragmentation Actwithout precisely framing an issue and then, based on it, going on toconsider the validity of Ext. 128 sale deed dated 21.04.1979 executed bythe second defendant in favour of the plaintiff, even-after noting thefinding of the First Appellate Court that as relates the sale of one acre ofland under Ext.128 sale deed the second defendant did not have anygrievance and then, observing, in tune with the same, that the seconddefendant did not dispute that he sold one acre of land to the plaintiff asper Ext.128 sale deed for the consideration of Rs. 3000/- and had shownreadiness and willingness to deliver the possession of it to the plaintiff.To make matters worse, the High Court has failed to consider the crucialissue whether the plaintiff is entitled to possession of the suit land on thestrength of the registered Ext.128 sale deed executed by the defendants.

31. The long and short of this long discussion is that for all thereasons mentioned above, the decision of the High Court on the validity AB

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Aof the sale transaction covered under the sale deed dated 04.07.1978executed by the second defendant in favour of the first defendant, interms of the provisions under the Fragmentation Act (when that questionwas not legally available to be considered in the subject suit) and thevirtual declaration of the said sale as void, are absolutely unsustainable.It is the product of erroneous assumption of jurisdiction and also erroneousBand perverse appreciation of evidence. It being the foundation for holdingthe registered sale deed dated 21.04.1979 (Ext.128) as void under Sub-section (1) of Section 9 of the Fragmentation Act, it is unsustainable.The various reasons mentioned above would support our conclusion asabove.

C32. Having held as above, we will now proceed to consider thequestion whether the upturning of the judgment and decree of the FirstAppellate Court, which held the sale deed dated 21.04.1979 (Ext.128)as one transferring ownership of the suit land by the plaintiff, by theHigh Court can be sustained. There can be no doubt with respect to theDposition that where a deed of sale had been duly executed and registered,its delivery and payment of consideration have been endorsed thereon itwould amount to a full transfer of ownership so as to entitle its purchaserto maintain a suit for possession of the property sold. The very object ofthe mandate for registration of transfer of an immovable property worthmore than Rs. 100/- under Section 54 of the Transfer of Property Act,E1882, read with Section 17 of the Indian Registration Act, is primarily togive certainty to title. When execution is challenged, registration by itselfis no proof of execution and proof of complying with Section 67 of theEvidence Act is necessary. There can be no reason to disbelieve a recitalcontained in a registered sale deed regarding payment of consideration,Fexecuted by the vendor. Hence, if it is said to have already been paid,going by the registered sale deed, certainly it is for the vendor assertingnon-passing of consideration to prove the said asserted fact. Bearing inmind the aforesaid aspects the aforesaid question has to be approached.

33. It is common case that the sale deed dated 21.04.1979G(Ext.128) is registered and its executants viz., the first defendant endorsedits execution and fully endorsed its contents and the second executantviz., the second defendant also endorsed its execution, but deposedifferently on its intention. Thus, the admitted position is that its executionand registration is not in dispute. Since it is a registered sale deed and itsexecution is not in dispute it must carry a presumption that the transactionH

was a genuine one. Thus, evidently, the dispute is only in regard to thenature of transaction. Being a registered one and apparently containingthe stipulations of transfer of right, title and interest in favour of thevendee on the land involved therein and described therein and also recitalregarding receipt of sale consideration the burden was entirely on thesecond defendant to establish otherwise and to prove that it did not reflectthe true nature of transaction. A perusal of Ext.128 would reveal thatthe extent of property is recorded therein as an area of ‘1 Hector, 42 R(3.20)’ in Survey No. 20/2 of village – Gangalgaon, Taluk – Chikhli ofBuldana District. Before delving further into the matter, it is relevant tonote that the First Appellate Court observed and held, after appreciatingthe evidence on record, that as relates one acre out of the total extent of3 acres 20 guntas sold by the second defendant comprised in SurveyNo. 20/2 as per Ext.128, the second defendant did not have any grievance.In other words, what was found was that the grievance was only relatingthe balance extent of 2 acres and 20 guntas comprised in Survey No.20/2 which, as per records, sold earlier by the second defendant, as persale deed dated 04.07.1978, to the first defendant. In this context, it isalso pertinent to note that in paragraph 24 of the impugned judgment theHon’ble High Court itself observed and held, as extracted hereinabove,that the defendant No. 2 did not dispute that he had sold one acre of landto the plaintiff as per the sale deed (Ext.128) for the consideration of Rs.3000/- and that he had shown his readiness and willingness to deliver thepossession of it to the plaintiff. Paragraph 26 of the impugned judgmentwould show that while rejecting the finding of the First Appellate Courton the inconsistency of the stand of the second defendant the High Courtheld thus:- “There is no inconsistency in the stand taken by the defendantNo. 2 either in the written statement or in the notice at Exhibit113. The defendant No. 2 is consistent in his stand that hehas sold one acre of land by the sale-deed at Exhibit 128 fora total consideration of Rs. 3000/-, but has denied to havesold 2 acres and 20 guntas of land to the plaintiff.”

When that be the indisputable factual position all the othercontentions raised by the second respondent against the plaintiff, includingmoney lending, non-passing of sale consideration in respect of the saidextent of one acre would all become inconsequential and unsustainableand unnecessary to be gone into. Even otherwise, in view of the factum AB

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Aof registration of Ext.128 and admission of its execution and the recordingof payment of consideration thereon, the second respondent was notjustified in raising grievance, initially, even against the sale of the aforesaidextent of one acre.

34. Now, what remains to be looked into is the grievance of theBsecond respondent with respect to the balance extent of 2 acres and 20guntas involved in the transaction. In the context of the contentions raisedby the second defendant viz., the first respondent in this appeal, what isrelevant and crucial is not only the factum of registration of Ext.128 andits execution by the second defendant but also the admission of executionof sale deed dated 04.07.1978 by him in favour of the first defendant.CTrue that the second defendant contended that it was executed as acollateral security for a money lending transaction. We have noted earlier,by referring to the decision in Rohit Singh’s Case (supra) that a defendantcould not be permitted to raise counter-claim against a co-defendant asby virtue of Order VIII Rule 6A, CPC, it could be raised by a defendantDonly against the claim of the plaintiff. Evidently, the High Court did notframe the validity of the sale deed dated 04.07.1978 executed by thesecond defendant in favour of the first defendant as a question of lawthough the trial Court also arrived at a finding on this issue without framingit as a specific issue. The indisputable fact is that the said sale deeddated 04.07.1978 was admittedly, executed and registered about nineE(9) months prior to the execution and registration of Ext. 128 sale deed.Ext. 128 would reveal that it involves the entire extent of 3 acres 20guntas in Survey No. 20/2 of Gangalgaon village and the first defendantis also an executant of the same. The observation and finding of theHigh Court in the first limb of paragraph 24 of the impugned judgmentFthat the second defendant did not dispute the sale of one acre of land tothe plaintiff as per Ext. 128 for the consideration of Rs. 3000/- wouldindicate that the balance amount of Rs. 7000/- was the consideration forthe balance extent of land covered under Ext. 128. Since the validity ofthe sale deed dated 04.07.1978 was not an issue/question that could be raised by the second defendant against the first defendant in the subjectGsuit and was rightly, not raised as an issue, the first defendant not onlydid not dispute the sale of such extent to the plaintiff but admitted thejoint execution of Ext. 128 and receipt of sale consideration, asincorporated in Ext. 128 and since the second defendant got no casethat he had assailed the validity of the sale deed dated 04.07.1978 eitherHbefore any competent authority or competent Civil Court this question needs no further elaboration. An inter-se dispute on the validity of thesale deed dated 04.07.1978, if at all between the second and firstdefendants, could not have been considered in the subject-suit, for thereasons already mentioned as it would amount to adjudication of right ora claim, by way of counter-claim by one defendant against his co-defendant. Finding on its voidness under the Fragmentation Act wasalready held as unsustainable by us.

35. In the context of the contentions of the second defendant/thefirst respondent herein against Ext. 128, taking note of its registrationand the admission of its execution it is only proper to refer to Sections 91and 92 of the Evidence Act. Certainly, parol evidence is admissible toshow that a contract embodied in a document was never intended to beacted upon but was made for some collateral purpose. But, in view ofthe specific finding in the judgment of the High Court, which is in favourof the second defendant, that the consistent stand of the second defendantis that he has sold one acre of land by the sale deed at Ext.128 for a totalconsideration of Rs. 3000/- and admission of execution of sale deeddated 04.07.1978 in favour of the first defendant and in the absence ofanything on record establishing annulment of the said sale deed and alsoin view of the fact that the first defendant is also a co-executant. We donot think it proper or necessary to enter into the extrinsic evidence relatingsale transaction covered by sale deed dated 04.07.1978. It is to be notedthat here, by virtue of Section 54, of the Transfer of Property Act andSection 17 of the Registration Act and since the immovable propertywas worth more than Rs. 100/- Ext.128 was reduced in writing andregistered. The intention of the parties are also reflected specifically inExt.128 and at the same, nothing reflecting a contra-intention not to passthe title and ownership in present even impliedly therein. In other words,the need to take into consideration the surrounding circumstances andthe conduct of parties in deciding the passing of title would arise only ifthe recitals in the document are indecisive and ambiguous. The oralevidence of the second defendant could not override the registered Ext.128 sale deed, as held by the First Appellate Court in the facts,circumstances and evidence on record in this case. In such circumstances,no other question(s) need be considered. The upshot of our considerationas above, is that the High Court has committed a serious error based onperverse appreciation of evidence, in setting aside the judgment anddecree of the First Appellate Court decreeing the subject suit and inrestoring the decree of dismissal of the suit of the trial Court.

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A36. In the result, we allow the appeal with costs and set aside thejudgment and final order dated 30.10.2015 in Second Appeal No. 435 of1995 passed by the High Court of Judicature at Bombay, Nagpur Benchrestoring the decree of the court of Joint Civil Judge, Junior Division,Chikhli in Regular Civil Suit No. 257 of 1985. Consequently, we restorethe judgment and decree of the Court of Additional District Judge, BuldanaBin Regular Civil Appeal No. 98 of 1987 arising from the judgment anddecree in Regular Civil Suit No. 257 of 1985.

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(Assisted by : Tamana, LCRA)

Appeal allowed.

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