Supreme Court of India
DAMODHAR NARAYAN SAWALE (D) THROUGH LRSversusSHRI TEJRAO BAJIRAO MHASKE & ORS
- Citation
- 2023 INSC 491
- Decided
- 4 May 2023
- Disposal
- Appeal(s) allowed
- Bench
- M R SHAH
Holding
The Fragmentation Act does not void the registered sale deed, the civil court lacked jurisdiction to entertain the Act’s issues as they were not pleaded, and the plaintiff is entitled to possession, leading to the restoration of the First Appellate Court’s decree.
Summary
The appellant sought possession of a 3‑acre agricultural field based on a registered sale deed dated 21‑04‑1979. The defendants argued that the deed was a sham, executed as collateral for a money‑lending transaction, and that the sale violated the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, rendering it void. The Supreme Court held that the plaint did not disclose any issue requiring referral to a competent authority under Sections 36A and 36B of the Act, so the civil court had no jurisdiction to apply the Fragmentation Act. Moreover, a registered sale deed that is not disputed as to execution and consideration creates a valid transfer of title, and the defendants could not raise a counter‑claim against a co‑defendant under Order VIII Rule 6A CPC. Consequently, the High Court’s reversal of the First Appellate Court’s decree was erroneous, and the decree granting possession to the appellant was restored.
Issues considered
- Whether the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 applies to the registered sale deed and makes it void under Section 9(1).
- Whether the suit involves issues that must be referred to a competent authority under Sections 36A and 36B of the Fragmentation Act, thereby removing jurisdiction from the civil court.
- Whether a defendant can raise a counter‑claim against a co‑defendant under Order VIII Rule 6A of the CPC.
- Whether the registered sale deed, despite claims of being a collateral security, effectually transfers ownership and entitles the purchaser to a suit for possession.
- Whether the trial court and High Court correctly framed and decided the issues relating to the Fragmentation Act.
- Whether the plaintiff is entitled to possession of the suit land on the basis of the registered sale deed.
Legislation cited
- Bombay Money Lenders Act, 1946s. 10
- Code of Civil Procedure, 1908s. Order VIII Rule 6A
- Indian Evidence Act, 1872s. 67, s. 91, s. 92
- Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947s. 31, s. 36A, s. 36B, s. 8, s. 9
- Registration Act, 1908s. 17
- Transfer of Property Act, 1882s. 5, s. 54
Subjects
Maharashtra Prevention of Fragmentation and Consolidation of Holdings ActFragmentation Actsale deedpossession suitcounter‑claimOrder VIII Rule 6Acivil court jurisdictionregistered deedtransfer of propertyevidenceArticle 136property law
Judgment
[2023] 6 S.C.R. 175 175
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS A
v.
SHRI TEJRAO BAJIRAO MHASKE & ORS.
(Civil Appeal No. 930 of 2023)
MAY 04, 2023 B
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Maharashtra Prevention of Fragmentation and Consolidation
of Holdings Act, 1947 : Applicability of the Act – On facts, suit field
comprising 3 acres and 20 guntas – Vide registered sale deed, 2 C
acres 20 guntas of the suit field purchased by first defendant from
second defendant – Remaining portion left with second defendant
– Later on, the co-defendant sold the said suit field to the appellant
vide registered sale deed in the year 1979 – Possession disturbed
by second defendant-first respondent – Suit for possession by the
appellant-plaintiff – Trial court held that appellant had not D
purchased the suit field as claimed and executed only as a security
for a money lending transaction; and that the transaction violated
the provision under the Fragmentation Act – First appellate court
decreed the suit for possession on the strength of title in favour of
the appellant – In second appeal, the High Court restored the decree E
of dismissal of the suit by the trial court holding that the sale or
transfer 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 not
disclose involvement of any such issue requiring a reference to a
competent authority under the Fragmentation Act – Case attempted F
to be projected and proved by the second respondent is that in regard
to the two sale deeds, they were never intended to be acted upon
and in fact, they were never been acted upon – Furthermore, despite
the lack of foundational facts attracting the applicability of the
‘Fragmentation Act’ and on the question of raising of any right or G
claim by way of counter-claims, it cannot be understood as to how
the trial court and the High Court came to frame issues and consider
such issue, that too, ignoring the statutory bar of jurisdiction to go
into and decide the issues – Second defendant did not make out
any case for attracting the provisions of the Fragmentation Act –
H
175
176 SUPREME COURT REPORTS [2023] 6 S.C.R.
A High Court erred in setting aside the judgment and decree of the
First Appellate Court decreeing the suit and in restoring the decree
of dismissal of the suit of the trial court – Judgment passed by the
High Court is set aside and that of the First Appellate Court is
restored – ss. 8, 9, 31, 36 A, 36 B.
B Code of Civil Procedure, 1908 : Ord. VIII r. 6 A – Counter-
claim by defendant – When can be raised – Held: A defendant could
not be permitted to raise counter-claim against co-defendant because
by virtue of Ord. VIII r. 6A, it could be raised by defendant against
the claim of the plaintiff – On facts, sole, vague averment in the
C written statement filed by the second defendant in the suit referring
to the Fragmentation Act, which in no way could construe as a
counter-claim capable of treating as a plaint and governed by the
rules applicable to plaints in terms of Ord VIII r. 6 A and enabling
the court to pronounce a final judgment in the same suit, both on
the original claim and on the counter-claim – An inter-se dispute
D on the validity of the sale deed, if at all between the second and
first defendants, could not have been considered in the subject-
suit, as it would amount to adjudication of right or a claim, by way
of counter-claim by one defendant against his co-defendant.
Allowing the appeal, the Court
E
HELD: 1.1 It is not the object or purpose of the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings Act,
1947 to totally prohibit or prevent transfer of land within any
notified ‘local area’, but it is only aimed at preventing the
fragmentation of agricultural holdings and to provide for the
F consolidation of agricultural holdings for the purpose of the better
cultivation thereof. [Para 18][191-E]
1.2 Though in a suit a defendant is entitled to raise
alternative inconsistent plea he could not be permitted to raise
pleas which are mutually destructive of each other and raising
G
such pleas would only work out to his detriment. [Para 19][191-
G-H]
1.3 While entertaining the contentions founded on the
Fragmentation Act raised by the second defendant, the trial court
as also the High Court have not bestowed attention to the
H
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 177
TEJRAO BAJIRAO MHASKE & ORS.
statutory bar of jurisdiction under Section 36A of the Act. [Para A
20][192-A-B]
1.4 The case attempted to be projected and proved by the
second respondent is that in regard to sale deed dated 04.07.1978
and the sale deed dated 21.04.1979 (Ext.128) they were never
intended to be acted upon and in fact, they were never been acted B
upon. If that is accepted, then, there is absolutely no question of
applicability of the provisions of ‘the Fragmentation Act’ as they
would apply only in the eventuality of an actual transfer of land or
partition of land subject to the satisfaction of other conditions.
[Para 22][193-B-D] C
1.5 A conjoint reading of Section 36A and 36B of the
Fragmentation Act would reveal that when a suit is instituted in a
Civil Court, the Court concerned has to consider if the suit
involves any issue(s) which is/are required to be settled, decided
or dealt with by any competent authority to settle, decide or dealt D
with, such issues under the said Act. If it does, then after staying
the suit the said issue(s) is to be referred to such competent
authority for determination. Apparently, no such consideration
had been made by the trial court as also by the High Court. [Para
23][193-D-E]
E
1.6. The words ‘if any suit, instituted in Civil Court’ and
‘involves any issues’ employed in Section 36B of the
Fragmentation Act would undoubtedly point to the fact that
involvement or otherwise of such issues mentioned under the
section in ‘the suit instituted in a Civil Court’ is the factor deciding
the applicability of the procedures prescribed under Section 36B, F
of the Fragmentation Act. Therefore, the question whether such
issue(s) falling under Section 36B of the Fragmentation Act is
involved or not was to be decided with reference to the averments
in the plaint. On their own the plaint averments did not disclose
involvement of any such issue(s) requiring a reference to a G
competent authority under the Fragmentation Act. Since the issue
is whether the suit involves such issue(s), we will refer to the
written statement as well. The sole, vague averment in the written
statement filed by the second defendant in the suit referring to
the Fragmentation Act, which in no way could construe as a
counter-claim capable of treating as a plaint and governed by the H
178 SUPREME COURT REPORTS [2023] 6 S.C.R.
A rules applicable to plaints in terms of Order VIII Rule 6 A, CPC
and enabling the court to pronounce a final judgment in the same
suit, both on the original claim and on the counter-claim. That
apart, the case projected and proved by the second defendant
that Ext.128 sale deed and sale deed dated 04.07.1978 were never
intended to be acted upon. Thus, going by his mutually destructive
B
pleas as well, no case for attracting the provisions of ‘the
Fragmentation Act’ was made out by the second defendant. [Para
24][194-A-F]
1.7 Despite the lack of foundational facts attracting the
applicability of the ‘Fragmentation Act’ (in fact, there is no serious
C
consideration of such aspects by the trial court and the High
Court) and the position revealed from the said decisions and the
provisions and on the question of raising of any right or claim by
way of counter-claims, it cannot be understood as to how the trial
court and the High Court came to frame issues and consider such
D issue(s), that too, ignoring the statutory bar of jurisdiction to go
into and decide the issues. [Para 27][195-B-D]
1.8 A careful scanning of the impugned judgment would
reveal that virtually, the High Court considered the validity of
the sale deed dated 04.07.1978 executed by the second defendant
E in 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 executed
by the second defendant in favour of the plaintiff. It is held that
defendant could not be permitted to raise counter-claim against
co-defendant because by virtue of Order VIII Rule 6A, CPC it
F could be raised by a defendant against the claim of the plaintiff.
In the instant case, no such counter-claim, which can be treated
as a plaint in terms of the said provision and thereby, enabling
the court to pronounce a final judgment in the same suit, both on
the original claim and on the counter claim, was filed by the second
G defendant. That apart, indisputably, the second defendant did not
dispute the execution of the registered sale deed dated
04.07.1978 by him in favour of the first defendant and in his written
statement the second defendant had only stated that according
to the provisions of the Fragmentation Act the plaintiff was not
H
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 179
TEJRAO BAJIRAO MHASKE & ORS.
entitled to any relief. When that be so, legally how can the High A
Court hold the sale deed dated 04.07.1978 executed by the second
defendant in favour of the first defendant, void under the
provisions of the Fragmentation Act without precisely framing
an issue and then, based on it, going on to consider the validity of
Ext. 128 sale deed dated 21.04.1979 executed by the second
B
defendant in favour of the plaintiff, even-after noting the finding
of the First Appellate Court that as relates the sale of one acre of
land under Ext.128 sale deed the second defendant did not have
any grievance and then, observing, in tune with the same, that
the second defendant did not dispute that he sold one acre of
land to the plaintiff as per Ext.128 sale deed for the consideration C
of Rs. 3000/- and had shown readiness and willingness to deliver
the possession of it to the plaintiff. To make matters worse, the
High Court failed to consider the crucial issue whether the plaintiff
is entitled to possession of the suit land on the strength of the
registered Ext.128 sale deed executed by the defendants.
D
[Para 30][197-A-G]
1.9 The decision of the High Court on the validity of the
sale transaction covered under the sale deed dated 04.07.1978
executed by the second defendant in favour of the first defendant,
in terms of the provisions under the Fragmentation Act (when
that question was not legally available to be considered in the E
subject suit) and the virtual declaration of the said sale as void,
are absolutely unsustainable. It is the product of erroneous
assumption of jurisdiction and also erroneous and perverse
appreciation of evidence. It being the foundation for holding the
registered sale deed dated 21.04.1979 (Ext.128) as void under F
Sub-section (1) of Section 9 of the Fragmentation Act, it is
unsustainable. [Para 31][197-H; 198-A-C]
1.10 As regards, the grievance of the second defendent
with respect to the balance extent of 2 acres and 20 guntas
involved in the transaction; in the context of the contentions raised G
by the second defendant viz., the first respondent in this appeal,
what is relevant and crucial is not only the factum of registration
of Ext.128 and its execution by the second defendant but also
the admission of execution of sale deed dated 04.07.1978 by him
in favour of the first defendant. True that the second defendant
H
180 SUPREME COURT REPORTS [2023] 6 S.C.R.
A contended that it was executed as a collateral security for a money
lending transaction. Evidently, the High Court did not frame the
validity of the sale deed dated 04.07.1978 executed by the second
defendant in favour of the first defendant as a question of law
though the trial court also arrived at a finding on this issue without
framing it as a specific issue. The indisputable fact is that the
B
said sale deed dated 04.07.1978 was admittedly, executed and
registered about nine (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 20 guntas in Survey No. 20/
2 of G village and the first defendant is also an executant of the
C same. The observation and finding of the High Court in the first
limb of paragraph 24 of the impugned judgment that the second
defendant did not dispute the sale of one acre of land to the plaintiff
as per Ext. 128 for the consideration of Rs. 3000/- would indicate
that the balance amount of Rs. 7000/- was the consideration for
the balance extent of land covered under Ext. 128. Since the
D
validity of the 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 subject suit and was rightly, not raised
as an issue, the first defendant not only did not dispute the sale
of such extent to the plaintiff but admitted the joint execution of
E Ext. 128 and receipt of sale consideration, as incorporated in
Ext. 128 and since the second defendant got no case that he had
assailed the validity of the sale deed dated 04.07.1978 either
before any competent authority or competent Civil Court this
question needs no further elaboration. An inter-se dispute on
the validity of the sale deed dated 04.07.1978, if at all between
F
the second and first defendants, could not have been considered
in the subject-suit, for the reasons already mentioned as it would
amount to adjudication of right or a claim, by way of counter-claim
by one defendant against his co-defendant. Finding on its voidness
under 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 Property
Act and Section 17 of the Registration Act and since the
immovable property was worth more than Rs. 100/- Ext.128 was
reduced in writing and registered. The intention of the parties
H are also reflected specifically in Ext.128 and at the same, nothing
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 181
TEJRAO BAJIRAO MHASKE & ORS.
reflecting a contraintention not to pass the title and ownership in A
present even impliedly therein. In other words, the need to take
into consideration the surrounding circumstances and the conduct
of parties in deciding the passing of title would arise only if the
recitals in the document are indecisive and ambiguous. The oral
evidence of the second defendant could not override the
B
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 High Court committed a serious error based on perverse
appreciation of evidence, in setting aside the judgment and decree
of the First Appellate Court decreeing the subject suit and in C
restoring 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 passed
by the High Court restoring the decree of the Civil Judge is set
aside. The judgment and decree of the Additional District Judge D
is restored. [Para 36][202-A-B]
Charanjit & Ors. v. State of Punjab & Anr. (2013) 11
SCC 163 : [2013] 10 SCR 688; Adambai Sulemanbhai
Ajmeri & Ors. v. State of Gujarat (2014) 7 SCC 716 :
[2014] 7 SCR 48; Jag Mohan Chawla and Anr. v. Dera E
Radha Swami Satsang & Ors. (1996) 4 SCC 699 :
[1996] 2 Suppl. SCR 509; Rohit Singh and Ors. v. State
of Bihar (2006) 12 SCC 734 : [2006] 7 Suppl. SCR
278 – referred to.
Case Law Reference F
[2013] 10 SCR 688 referred to Para 10
[2014] 7 SCR 48 referred to Para 10
[1996] 2 Suppl. SCR 509 referred to Para 25
[2006] 7 Suppl. SCR 278 referred to Para 26 G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 930 of
2023.
From the Judgment and Order dated 30.10.2015 of the High Court
of Judicature at Bombay at Nagpur in SA No. 435 of 1995.
H
182 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Ms. Apurva, Shivaji M. Jadhav, Brij Kishor Sah, M/s S. M. Jadhav
and Company, Advs. for the Appellants.
Kishor Lambat, Ms. Suja Joshi, Ms. Kashmira Lambat, Sachin
Pahwa, M/s Lambat and Associates, Advs. for the Respondents.
The Judgment of the Court was delivered by
B
C. T. RAVIKUMAR, J.
1. This appeal filed under Article 136 of the Constitution of India
is directed against the judgment and final order dated 30.10.2015 in Second
Appeal No.435 of 1995 passed by the High Court of Judicature at Bombay,
C Nagpur Bench, whereby and whereunder the High Court reversed the
judgment and decree of the Court of Additional District Judge, Buldana,
in Regular Civil Appeal No.98 of 1987, reversing the judgment and decree
of dismissal passed by the Court of Joint Civil Judge, Junior Division,
Chikhli in Regular Civil Suit No.257 of 1985 (originally numbered as
Regular Civil Suit No.104 of 1979 on the file of the Court of Civil Judge,
D Senior Division, Buldana, before its transfer). In short, as per the
impugned judgment, the High Court restored the decree of dismissal of
the suit by the trial Court. The stated Regular Civil Suit is one for
possession of suit land on the strength of title.
2. Shorn of details, the plaint averments for seeking possession of
E the suit land, which is a field comprised in Khasra No.20/2, having an
extent 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 Mhaske
and Tejra Bajirao Mhaske, have sold the above-described suit field in
F favour 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 such
circumstances, the second defendant who sold the same for discharging
G
debts and family needs got no right or reason to disturb his peaceful
possession. The total sale consideration of Rs.10,000/- was given to
defendants for the aforesaid entire extent of 3 acres and 20 guntas as
the first defendant obtained title over 2 acres and 20 guntas out of the
aforesaid total extent from the second defendant as per registered sale
H deed dated 04.07.1978 and the second defendant remained as the owner
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 183
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
in possession of the balance one acre. It is his case that the second A
defendant had utilised the sale consideration passed on to him for different
purposes, including to pay his debts. It is also relevant to note that the
original petitioner in the SLP, from which this appeal arises, viz., the
plaintiff, died during pendency of this proceeding and subsequently, his
legal representatives got substituted as petitioners. Ergo, they are jointly
B
described hereafter as ‘appellants’, wherever, such reference is required.
On the death of the first defendant/the original second respondent during
the pendency of the Second Appeal, his legal representatives were
impleaded as additional respondents and they are respondent Nos. 2 to 6
herein. For the non-compliance with the order of the Hon’ble Chamber
Judge, the SLP stood dismissed qua respondent No. 6, as per order C
dated 22.11.2017. At the stage of second appeal the legal heirs of the
deceased son of the second defendant viz., the first respondent herein,
were impleaded as respondents therein and they are respondents 7 to 9
herein.
3. The first defendant filed a written statement endorsing the claim D
and contentions of the plaintiff and he would also state therein that after
executing the sale deed, himself and the second defendant (the first
respondent herein) parted with the possession of the suit land and then,
the second defendant (the first respondent herein) turned dishonest and
started disturbing the possession of the plaintiff. However, the second
defendant (the first respondent herein) resisted the suit by filing written E
statement and denying the claims and contentions of the plaintiff. His
pleadings revealed from the written statement, in nutshell, read thus:-
The sale deed dated 21.04.1979 (Exhibit 128) is a sham document
which was never intended to be acted upon and in fact, it was never
been acted upon. His case, while admitting the execution of sale deed F
(Exhibit 128), is that though it was executed as a sale deed, what had
actually transpired was nothing but an execution of sale deed solely as a
collateral security to a money lending transaction viz., for a loan of
Rs.1000/- with a promise to re-pay an amount of Rs.1500/- within 12
months. It is to be noted that in the written statement, the second G
defendant (the first respondent herein) further contended that the
registered sale deed executed in favour of the original first defendant
was also of the very same nature. He would further plead that in the
said transactions also, in fact there was no passing of sale consideration
from the purchasers as in the case of Exhibit 128 sale deed so as to
H
184 SUPREME COURT REPORTS [2023] 6 S.C.R.
A constitute a valid sale and the other such sale deeds were also executed
without any intention to effect sale of the properties, at the time of
borrowing money. To contend that the plaintiff is disentitled to any relief
as sought for, he would also raise two other contentions; firstly, based on
the provisions of Maharashtra Prevention of Fragmentation and
Consolidation of Holdings Act, 1947 (hereinafter referred to as
B
‘Fragmentation Act’) and secondly, in the light of the provisions under
Section 10 of the Bombay Money Lenders Act, 1946, which get attracted
owing to the facts that he is an original farmer owning only less than 2
hectares of land and that his annual income is less than Rs.1200/-.
4. Based on the rival pleadings, the trial Court formulated the
C following issues and answered them in the following manner, as can be
seen from paragraph 6 of its judgment:-
ISSUES FINDINGS.
1. Does the Plaintiff proves In the negative.
D that he purchased the suit
field from Defendants as
alleged?
2. Does he further proves In the negative.
E that the suit sale deed is for
legal necessity?
3. If the Plaintiff entitled to In the negative.
the possession of the suit
F
field along with enquiry into
mesne.
4. Does the Defendant No.2 In the affirmative.
proves that the suit sale
G
deed is bogus, sham and
nominal as alleged?
5. Does the further proves In the affirmative.
that the Plaintiff deals in
H
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 185
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
money landing without A
licence?
6. Does he further proves In the affirmative.
that the sale deed in suit
was made as per the B
agreement given in para 9 of
the Written Statement?
7. Does he further prove that In the affirmative.
C
the suit field is owned by
other persons?
8. Does he further proves In the affirmative.
that the permission of the
D
District Judge, is required for
the suit sale deed as
alleged?
9. Does he further proves In the affirmative.
E
that he is a marginal owner
as alleged in para 14 of the
Written Statement.
10. Reliefs and costs? As per final order. F
5. On the basis of the findings returned on the issues thus
formulated, the trial Court came to the conclusions that the plaintiff had
not purchased the suit field as claimed, that he had failed to prove that
the execution of the sale deed was for a legal necessity of the second
defendant. Further, it came to the conclusion that the sale deed was a
G
sham document and it was executed only as a security for a money
lending transaction and consequently, the original suit was dismissed with
costs.
6. In Regular Civil Appeal No.98 of 1987, filed by the unsuccessful
plaintiff, the First Appellate Court framed the following points for
H
186 SUPREME COURT REPORTS [2023] 6 S.C.R.
A consideration based on the rival submissions and returned the following
findings: -
POINTS FINDINGS
1. Whether it is proved by the plaintiff Yes
B that defendant No.2 had executed
sale deed in his favour under Ex.
128 and he has become owner of
the property?
C 2. Whether it is proved by the No
defendant No.2 that the sale deed
Ex. 128 was a nominal document
and was executed by way of
D collateral security for money
lending transaction?
3. Whether Plaintiff is entitled to the Yes
possession of suit property?
E
4. What order? As per final order.
7. Thus, it is evident that upon finding that the trial Court had
virtually ignored the legal impact and effect of registered sale deed (Exhibit
128), in respect of suit land executed in favour of the appellant therein
viz., the plaintiff, the First Appellate Court considered the issues
F formulated by focusing that aspect. True that for upholding the sale deed
viz. (Exhibit 128), the First Appellate Court had given due weight to the
notice dated 27.04.1979 (Exhibit 113), virtually lawyer notice issued by
the second defendant immediately after the transaction, in the name of
the plaintiff and held that it would lend support to the factum of sale
G effected through sale deed (Exhibit 128). The First Appellate Court on
such consideration and on appreciation of the materials on record held
that the second defendant had failed to prove that the sale transaction
was an outcome of money lending transaction and that the sale deed
was nominal in nature. Consequently, the appeal was allowed, the
judgment and decree of the Trial Court was set aside and the suit for
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DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 187
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
possession on the strength of title was decreed in favour of the plaintiff A
(the appellant therein).
8. It is feeling aggrieved and dissatisfied with the said judgment
and decree that the Second Appeal No.435 of 1995 was filed by the
original second defendant viz., the first respondent herein, which ultimately
culminated in the impugned judgment. B
9. A perusal of the impugned judgment would reveal that the High
Court re-framed the substantial questions of law on 15.10.2015 as
hereinunder: -
[1] Whether the plaintiff has established his entitlement for a
decree of possession of the suit property on the basis of the C
sale deed dated 21.04.1979 at Exh.128 executed by the
defendant Nos.1 and 2?
[2] Whether the defendant No.2 has established that the sale
deed at Exh.128 was nominal and by way of collateral security
and the said transaction was hit by the provisions of Section D
8 of the Maharashtra Prevention of Fragmentation and
Consolidation of Holdings Act?
[3] While reversing the findings recorded by the trial Court,
whether the lower appellate Court has ignored the findings
recorded by the trial Court on the material facts in the light E
of undisputed factual position?”
10. Even though the powers under Article 136 of the Constitution
of India must be exercised sparingly, yet there is absolutely nothing in
the said Article which prohibits the Supreme Court from reversing even
concurrent findings of the fact by courts below, if it is of the opinion on F
the basis of the evidence on record, that affirming the findings of the
courts below would result in a grave miscarriage of justice. It was so
held by this Court in Charanjit & Ors. v. State of Punjab & Anr.1 as
also in Adambai Sulemanbhai Ajmeri & Ors. v. State of Gujarat2.
Therefore, if a relevant material legally brought on record and the question
G
of law arising out of its existence were not considered by the High Court,
despite its due consideration by the First Appellate Court, while reversing
the judgment founded on such consideration this Court has necessarily
1
(2013) 11 SCC 163
2
(2014) 7 SCC 716 H
188 SUPREME COURT REPORTS [2023] 6 S.C.R.
A to consider the same in invocation of the power under Article 136. While
considering this appeal, in that view of the matter, it is only proper and
profitable to refer to the following crucial and relevant facts obtained in
the case:
(i) Exhibit 128 is a registered sale deed.
B (ii) Its execution is admitted by both the original defendants. (True
that the second defendant (first respondent herein) contends that
it was executed as a collateral security at the time of a money
lending transaction).
(iii) The second defendant (first respondent herein) has also
C admitted execution of registered sale deed in favour of defendant
No. 1 (earlier in point of time than Exhibit 128) in respect of 2
acres and 20 guntas. (Here also, the second defendant claimed
that the sale deed was executed as a collateral security for the
money borrowed and therefore repayable to him along with the
D quantified fixed interest thereon).
11. We have already referred to the issues/points formulated by
the courts below and the findings returned by the respective courts which
formed the basis for their respective judgments. Bearing in mind the
decisions referred supra and also the relevant facts available, as noted
E above and also the relevant provisions under the relevant enactments, to
be referred to hereafter, we may proceed to consider this appeal.
12. As noted earlier, after reversing the judgment and decree of
the First Appellate Court, the High Court restored the decree of the trial
Court. In this context, it is apt to note the re-framed substantial question
F of law No. 3 by the High Court, extracted above, that carries the query
whether, while reversing the findings recorded by the trial Court, the
lower appellate Court had ignored the findings recorded by it on the
material facts in the light of undisputed factual position. We may hasten
to add here that a bare perusal of the impugned judgment would reveal
that after framing such a question of law the High Court did the very
G seemingly attributed act inasmuch as it did not consider the legal impact
and effect of Ext. 128, registered sale deed, which was taken into
consideration by the First Appellate Court, while reversing the judgment
and decree of the First Appellate Court.
13. A scanning of the trial Court judgment would reveal indubitably
H that despite the admission of the execution and registration of Exhibit
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 189
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
128 sale deed dated 21.04.1979 by the second defendant in favour of A
the plaintiff and also that of the sale deed dated 04.07.1978 by him to the
first defendant, it had failed to consider the legal effect and impact of
execution and registration of such a sale deed in view of the provisions
under the Transfer of Property Act, 1882, as also the Registration Act,
1908, and sans such consideration accepted the second defendant’s
B
contention that it is a sham document. Paragraph 7 of the judgment of
the trial Court would reveal that despite the admission of execution and
registration of Ext. 128 sale deed dated 21.04.1979 by the second
defendant as also by the first defendant, the trial Court held that the
burden of proving the factum of execution of sale deed and passing of
the consideration amount was on the plaintiff. The trial Court had also C
failed to consider the relevance and application of Section 92 of the
Indian Evidence Act, 1872 while appreciating the oral evidence against
Ext. 128. Evidently, the trial Court accepted the case of the second
defendant that the said sale deed was one executed as a collateral security
to a money lending transaction and that it was never intended to be
D
acted upon. The trial Court has also held the sale deed virtually invalid
by accepting the contention that the transaction violated the provision
under Section 8 of the Fragmentation Act and in that regard the sale
deed dated 04.07.1978 executed between defendant Nos. 1 and 2 was
held as one creating a ‘fragment’ and therefore, violating the prohibition.
This was done without looking into the question as to its jurisdiction to E
entertain and adjudicate upon such a plea in view of the statutory bar of
jurisdiction under Section 36A of the Fragmentation Act. In that regard
it is noteworthy that nothing was specifically mentioned in paragraph 14
or anywhere else in the written statement filed by the second defendant
regarding the violation of the provisions under the Fragmentation Act
F
and, in fact, only vague reference was made on that aspect in paragraph
16 reproduced as under: -
“16. …In event, according to provision of Consolidation of
Act and Prevention of Fragmentation Act, the plaintiff not
entitled to any relief.”
G
14. In view of the aforementioned facts as also taking note of the
contentions raised on behalf of the contesting respondents, in support of
the impugned judgment, that the First Appellate Court failed to consider
at all the voidness of the sale transaction of 2 acres and 20 guntas between
original defendants 1 and 2, its impact on the sale of consequentially
H
190 SUPREME COURT REPORTS [2023] 6 S.C.R.
A created ‘fragmentation’ of one acre by the second defendant and the
whole sale transaction effected under Exhibit 128 sale deed by operation
of the Fragmentation Act and further that the said aspect was rightly
considered by the High Court, we think it only proper to deal with that
matter appropriately.
B 15. At the outset, we may say that there is dichotomy between
the contention of the first respondent/ the second defendant founded on
the Fragmentation Act as mentioned above and also his contention of
absolute absence of a transaction partaking the real nature of sale. This
is because Section 9 (1) of the Fragmentation Act makes void only the
transfer or partition of any land contrary to the provisions of the said
C Act. The word ‘transfer’ is not defined under the Fragmentation Act
though the expression ‘land’ has been defined thereunder. As per Section
2 (5) of the Fragmentation Act, the term ‘land’ means, ‘agricultural land
whether alienated or unalienated’. In the said circumstances, to know
the meaning of the words ‘transfer of any land’ used in Section 9 (1) of
D the Fragmentation Act, one may have to see the definition of ‘transfer
of 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 person
E conveys property, in present or in future, to one or more other
living persons, or to himself, [or it himself] and one or more
other living persons; and “to transfer property” is to perform
such act.
[in this section “living person” includes a company or
F association or body of individuals, whether incorporated or
not, but nothing herein contained shall affect any law for the
time being in force relating to transfer of property to or by
companies, associations or bodies of individuals.]
16. In the contextual situation it is also relevant to refer to the
G definition of ‘sale’ given under Section 54 of the TP Act, which reads
thus:-
54. “Sale” defined.—”Sale” is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised.
H
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 191
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
17. The term ‘transfer’ is a word in a broader sense and the word A
‘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 property
and 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 the
Indian Registration Act, 1908, mandates that transfer of ownership of
B
any land worth more than Rs.100/- shall be effected by a registered
deed. Therefore, transfer of a land worth more than Rs.100/- by a
registered deed implies transmutation of all rights as the vendor possessed
in the property concerned. We are not oblivious of the fact the mere
registration of a document is no proof of its execution. We will deal with
this aspect a little later. It will not be inappropriate to look into the object C
of the Fragmentation Act, in the context of the contentions. It runs as
under:-
“Whereas it is expedient to prevent the fragmentation of
agricultural holdings and to provide for the consolidation of
agricultural holdings for the purpose of the better cultivation D
thereof;”
18. Thus, obviously, it is not the object or purpose of the
Fragmentation Act to totally prohibit or prevent transfer of land within
any notified ‘local area’, but it is only aimed at preventing the
fragmentation of agricultural holdings and to provide for the consolidation E
of 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 herein
had made out any case for attracting the provisions of the Fragmentation F
Act /or in other words, whether the trial Court was right in applying the
provisions under the said Act and the High Court was legally correct in
restoring the decree of the trial Court after reversing the judgment and
decree of the First Appellate Court, in view of the mutually annihilative
pleas taken up by the second defendant viz., the first respondent herein
and accepted by the trial Court and the High Court. Contextually, it is G
apposite to state that though in a suit a defendant is entitled to raise
alternative inconsistent plea he could not be permitted to raise pleas
which are mutually destructive of each other and raising such pleas
would only work out to his detriment.
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192 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 20. Evidently, while entertaining the contentions founded on the
Fragmentation Act raised by the second defendant, the trial Court as
also the High Court have not bestowed attention to the statutory bar of
jurisdiction under Section 36A of the Fragmentation Act which reads
thus:-
B [36A. (1) No Civil Court or Mamlatdar’s Court shall have
jurisdiction to settle, decide or deal with any question which
is by or under this Act required to be settled, decided or dealt
with by the State Government or any officer or authority.
21. In the above context, it is also relevant to refer to Section 36
C B (1) of the Fragmentation Act. It reads as under:
[36B. (1) If any suit instituted in any Civil Court or
Mamlatdar’s Court involves any issues which are required to
be settled, decided or dealt with by any authority competent
to settle, decide or deal with such issues under this Act
D (hereinafter referred to as the ‘competent authority’) the Civil
Court or Mamlatdar’s Court shall stay the suit and refer such
issues to such competent authority for determination.
22. It is also worthwhile in the contextual situation to refer to
Section 9 of the Code of Civil Procedure, 1908 (hereinafter referred to
E as, ‘the CPC’), which confers jurisdiction upon the Civil Courts to
determine all disputes of civil nature, unless the same is barred under a
statute, either expressly or by necessary implication. We shall not be
oblivious of the fact that the second defendant had not so far approached
the competent authority under the Fragmentation Act to nullify the action
undertaken under the conveyance, resorting to the remedy contemplated
F under the Fragmentation Act, going by the materials on record. At any
rate, there is no such case for him. We made this statement because the
first proviso to Section 9(3) of the Fragmentation Act would reveal that
the automatic voidness would not be attracted to a transfer of land
contrary to the provisions of the Fragmentation Act, if it was made on or
G after 15th day of November, 1965 and before the date of commencement
of Maharashtra Prevention of Fragmentation and Consolidation of
Holdings (Amendment) Act, 2017 and that apart, Section 31, referred
therein, 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 is
to be transferred to an agriculturist, in its entirety provided such transfer
H is not creating a fragment. We may hasten to add here that we shall not
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 193
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
be understood to have held that the subject suit involves any issue(s) A
which is required to be settled, decided or dealt with any authority
competent to settle, decide or deal with such issue under the
Fragmentation Act. As a matter of fact, the very applicability of the
Fragmentation Act itself on sale transactions would depend upon the
question whether the area in question falls under a Municipal Council or
B
not and if it does not, then on the further question as to whether it falls
within a ‘local area’ notified under the Fragmentation Act. Above all, the
case attempted to be projected and proved by the second respondent is
that in regard to sale deed dated 04.07.1978 and the sale deed dated
21.04.1979 (Ext.128) they were never intended to be acted upon and in
fact, they were never been acted upon. If that is accepted, then, there is C
absolutely no question of applicability of the provisions of ‘the
Fragmentation Act’ as they would apply only in the eventuality of an
actual transfer of land or partition of land subject to the satisfaction of
other conditions.
23. A conjoint reading of Section 36A and 36B of the Fragmentation D
Act would reveal that when a suit is instituted in a Civil Court, the Court
concerned has to consider if the suit involves any issue(s) which is/are
required to be settled, decided or dealt with by any competent authority
to 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 such
competent authority for determination. Apparently, no such consideration E
had 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 year
1979, at this distance of time and also for the reasons stated hereinabove
and to be unfolded hereinafter, we are not inclined to remand the matter
to decide the question whether the second defendant/ the first respondent F
herein had succeeded in establishing that the subject suit involves any
issue required to be settled, decided or dealt with by any competent
authority under the said Act and therefore the subject suit was to be
stayed as mandated under Section 36B of the Fragmentation Act and
such issue was to be referred to such competent authority for G
determination. The well-nigh settled position is that the jurisdiction of the
Court has to be determined based on the averments in the plaint and it
cannot be determined only on the basis of the uncorroborated averments
made in the written statement. This position is unquestionably applicable
in the case on hand in view of the specific wordings under Section 36B
H
194 SUPREME COURT REPORTS [2023] 6 S.C.R.
A of the Fragmentation Act viz., if any suit instituted in any Civil Court or
Mamlatdar’s Court involves any issues which are required to be settled,
decided or dealt with by any authority competent to settle, decide or
dealt with under this Act. The words ‘if any suit, instituted in Civil Court’
and ‘involves any issues’ employed in Section 36B of the Fragmentation
Act would undoubtedly point to the fact that involvement or otherwise
B
of such issues mentioned under the section in ‘the suit instituted in a
Civil Court’ is the factor deciding the applicability of the procedures
prescribed under Section 36B, of the Fragmentation Act. Therefore, the
question whether such issue(s) falling under Section 36B of the
Fragmentation Act is involved or not was to be decided with reference
C to the averments in the plaint. On their own the plaint averments did not
disclose involvement of any such issue(s) requiring a reference to a
competent authority under the Fragmentation Act. Since the issue is
whether the suit involves such issue(s), we will refer to the written
statement as well. We have already referred to the sole, vague averment
in the written statement filed by the second defendant in the suit referring
D
to the Fragmentation Act, which in no way could construe as a counter-
claim capable of treating as a plaint and governed by the rules applicable
to plaints in terms of Order VIII Rule 6 A, CPC and enabling the court
to pronounce a final judgment in the same suit, both on the original claim
and on the counter-claim. That apart, we have also already noted the
E case projected and proved by the second defendant that Ext.128 sale
deed and sale deed dated 04.07.1978 were never intended to be acted
upon. Thus, going by his mutually destructive pleas as well, no case for
attracting the provisions of ‘the Fragmentation Act’ was made out by
the second defendant.
F 25. In the above context the decision of this court in Jag Mohan
Chawla 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 is
so couched with words of wide width as to enable the parties to bring his
own independent cause of action in respect of any claim that would be
subject matter of an independent suit. It is no longer confined to money
G claim or to cause of action of the same nature as original cause of action
of the plaintiff and it need not relate to or be connected with the original
cause of action or matter pleaded by the plaintiff. It was further held
that the words “any right or claim in respect of a cause of action accruing
with the defendant” would show that the cause of action from which the
H 3
(1996) 4 SCC 699
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 195
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
counter claim arises need not necessarily arise from or have any nexus A
with the cause of action of the plaintiff.
26. The decision of this court in Rohit Singh and Ors. v. State of
Bihar4 also assumes relevance in the above context. This court held
that a defendant could not be permitted to raise counter-claim against
co-defendant because by virtue of Order VIII Rule 6A, CPC, it could B
be raised by defendant against the claim of the plaintiff.
27. Now, it is required to be noted that despite the lack of
foundational facts attracting the applicability of the ‘Fragmentation Act’
(in fact, there is no serious consideration of such aspects by the trial
Court and the High Court) and the position revealed from the aforesaid C
decisions and the provisions and on the question of raising of any right or
claim by way of counter-claims, we are at a loss to understand as to
how the trial Court and the High Court came to frame issues and consider
such issue(s), that too, ignoring the statutory bar of jurisdiction to go into
and decide, issue No.9 framed by the trial Court, as extracted in
paragraph 4 hereinabove and issue No. 2 re-framed by the High Court, D
as extracted in paragraph 9 hereinabove.
28. As relates issue No. 9, framed by the trial Court, at the risk of
repetition, we will state that in regard to ‘the Fragmentation Act’ only a
very vague plea was taken in the written statement by the second
defendant viz., “In event, according to the provisions of Consolidation of E
Act and Prevention of Fragmentation Act, the plaintiff is not entitled to
any relief.” Thus, when the indisputable position is that no counter-claim,
within the meaning of Order VIII Rule 6A, CPC was made by the second
defendant and no averment whatsoever was made specifically in the
written statement filed by him how such an issue as to whether ‘he had F
proved to be a marginal owner’ in the light of the ‘Fragmentation Act’
arise for consideration. This is because the well-nigh settled position of
law is that one could be permitted to let in evidence only in tune with his
pleadings. We shall not also be oblivious of the basic rule of law of
pleadings, founded on the principle of secundum allegata et probate,
that a party is not allowed to succeed where he has not set up the case G
which he wants to substantiate. Whether the area in question is a ‘local
area’ notified under the ‘Fragmentation Act’ so as to have application of
the provisions of the said Act, even if it is so, whether the sale transaction
of one acre by the second defendant is legally permissible or could be
4
(2006) 12 SCC 734 H
196 SUPREME COURT REPORTS [2023] 6 S.C.R.
A regularized etc., were not raised or considered, as is evident from the
judgment of the trial Court. This issue was considered by the trial Court
in 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.
B So, under the section 8A of the fragmentation Act, the sale
deed on Exh-128 in regard to the suit property executed by
the Defendant No. 2 in respect of 1 acre of land as per
Plaintiff ’s case is barred by this section. So, section of
fragmentation A it also is applicable to the legality of the sale
deed Exh. 128. Therefore, issue No. 9 is required to be decided
C in favour of the Defendant No. 2 and I therefore, answer
issue No. 9 in the affirmative.”
29. Now, we will refer to issue No. 2 re-framed by the High
Court in regard to the application of the ‘Fragmentation Act’. Before
dealing with the matter any further, it is only appropriate to refer to the
D following recital from paragraph 24 of the impugned judgment of the
High Court:-
“24. The defendant No. 2 does not dispute that he had sold
one acre of land to the plaintiff by the sale deed at Ext. 128
for the consideration of Rs. 3,000/- and he has shown his
E readiness and willingness to deliver the possession of it to
the plaintiff.”
Obviously, the First Appellate Court also arrived at the same finding
in respect of the said extent of land and this fact has been duly taken
care of by the High Court in paragraph 15 of its judgment. Even after,
F finding as such the High Court interfered with that part of Ext. 128 sale
deed 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 by
the second defendant. The High Court, in paragraph 24 of the impugned
judgment held thus:-
G “24. …However, the sale or transfer of one acre of land out
of Survey No. 20/2 by the registered sale-deed at Exhibit 128
is the sale of fragment, which is hit by Section 8 of the said
Act, and such sale becomes, therefore, void under sub-section
(1) of the Section 9 therein. The second portion of the
substantial question of law at Serial No. [2] is answered
H
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 197
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
accordingly. The plaintiff cannot, therefore, seek possession A
on the basis of such sale-deed.
30. Thus, a careful scanning of the impugned judgment would
reveal that virtually, the High Court considered the validity of the sale
deed dated 04.07.1978 executed by the second defendant in favour of
the first defendant under ‘the Fragmentation Act’, without directly framing B
an issue precisely on the same and then, decided the validity of the sale
deed dated 21.04.1979 executed by the second defendant in favour of
the plaintiff. We have already taken note of the decision of this Court in
Rohit Singh’s case (supra), wherein it is observed that a defendant could
not be permitted to raise counter-claim against co-defendant because
by virtue of Order VIII Rule 6A, CPC it could be raised by a defendant C
against the claim of the plaintiff. Be that as it may, in the instant case, no
such counter-claim, which can be treated as a plaint in terms of the said
provision and thereby, enabling the court to pronounce a final judgment
in the same suit, both on the original claim and on the counter-claim, was
filed by the second defendant. That apart, indisputably, the second D
defendant did not dispute the execution of the registered sale deed dated
04.07.1978 by him in favour of the first defendant and in his written
statement the second defendant had only stated that according to the
provisions of the Fragmentation Act the plaintiff was not entitled to any
relief. When that be so, legally how can the High Court hold the sale
deed dated 04.07.1978 executed by the second defendant in favour of E
the first defendant, void under the provisions of the Fragmentation Act
without precisely framing an issue and then, based on it, going on to
consider the validity of Ext. 128 sale deed dated 21.04.1979 executed by
the second defendant in favour of the plaintiff, even-after noting the
finding of the First Appellate Court that as relates the sale of one acre of F
land under Ext.128 sale deed the second defendant did not have any
grievance and then, observing, in tune with the same, that the second
defendant did not dispute that he sold one acre of land to the plaintiff as
per Ext.128 sale deed for the consideration of Rs. 3000/- and had shown
readiness and willingness to deliver the possession of it to the plaintiff.
To make matters worse, the High Court has failed to consider the crucial G
issue whether the plaintiff is entitled to possession of the suit land on the
strength of the registered Ext.128 sale deed executed by the defendants.
31. The long and short of this long discussion is that for all the
reasons mentioned above, the decision of the High Court on the validity
H
198 SUPREME COURT REPORTS [2023] 6 S.C.R.
A of the sale transaction covered under the sale deed dated 04.07.1978
executed by the second defendant in favour of the first defendant, in
terms of the provisions under the Fragmentation Act (when that question
was not legally available to be considered in the subject suit) and the
virtual declaration of the said sale as void, are absolutely unsustainable.
It is the product of erroneous assumption of jurisdiction and also erroneous
B
and perverse appreciation of evidence. It being the foundation for holding
the 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 as
above.
C 32. Having held as above, we will now proceed to consider the
question whether the upturning of the judgment and decree of the First
Appellate Court, which held the sale deed dated 21.04.1979 (Ext.128)
as one transferring ownership of the suit land by the plaintiff, by the
High Court can be sustained. There can be no doubt with respect to the
D position that where a deed of sale had been duly executed and registered,
its delivery and payment of consideration have been endorsed thereon it
would amount to a full transfer of ownership so as to entitle its purchaser
to maintain a suit for possession of the property sold. The very object of
the mandate for registration of transfer of an immovable property worth
more than Rs. 100/- under Section 54 of the Transfer of Property Act,
E 1882, read with Section 17 of the Indian Registration Act, is primarily to
give certainty to title. When execution is challenged, registration by itself
is no proof of execution and proof of complying with Section 67 of the
Evidence Act is necessary. There can be no reason to disbelieve a recital
contained in a registered sale deed regarding payment of consideration,
F executed 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 asserting
non-passing of consideration to prove the said asserted fact. Bearing in
mind the aforesaid aspects the aforesaid question has to be approached.
33. It is common case that the sale deed dated 21.04.1979
G (Ext.128) is registered and its executants viz., the first defendant endorsed
its execution and fully endorsed its contents and the second executant
viz., the second defendant also endorsed its execution, but depose
differently on its intention. Thus, the admitted position is that its execution
and registration is not in dispute. Since it is a registered sale deed and its
execution is not in dispute it must carry a presumption that the transaction
H
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 199
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
was a genuine one. Thus, evidently, the dispute is only in regard to the A
nature of transaction. Being a registered one and apparently containing
the stipulations of transfer of right, title and interest in favour of the
vendee on the land involved therein and described therein and also recital
regarding receipt of sale consideration the burden was entirely on the
second defendant to establish otherwise and to prove that it did not reflect
B
the true nature of transaction. A perusal of Ext.128 would reveal that
the 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 of
Buldana District. Before delving further into the matter, it is relevant to
note that the First Appellate Court observed and held, after appreciating
the evidence on record, that as relates one acre out of the total extent of C
3 acres 20 guntas sold by the second defendant comprised in Survey
No. 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 relating
the 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 per
D
sale deed dated 04.07.1978, to the first defendant. In this context, it is
also pertinent to note that in paragraph 24 of the impugned judgment the
Hon’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 land
to 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 the E
possession of it to the plaintiff. Paragraph 26 of the impugned judgment
would show that while rejecting the finding of the First Appellate Court
on the inconsistency of the stand of the second defendant the High Court
held thus:-
“There is no inconsistency in the stand taken by the defendant F
No. 2 either in the written statement or in the notice at Exhibit
113. The defendant No. 2 is consistent in his stand that he
has sold one acre of land by the sale-deed at Exhibit 128 for
a total consideration of Rs. 3000/-, but has denied to have
sold 2 acres and 20 guntas of land to the plaintiff.”
G
When that be the indisputable factual position all the other
contentions raised by the second respondent against the plaintiff, including
money lending, non-passing of sale consideration in respect of the said
extent of one acre would all become inconsequential and unsustainable
and unnecessary to be gone into. Even otherwise, in view of the factum
H
200 SUPREME COURT REPORTS [2023] 6 S.C.R.
A of registration of Ext.128 and admission of its execution and the recording
of payment of consideration thereon, the second respondent was not
justified in raising grievance, initially, even against the sale of the aforesaid
extent of one acre.
34. Now, what remains to be looked into is the grievance of the
B second respondent with respect to the balance extent of 2 acres and 20
guntas involved in the transaction. In the context of the contentions raised
by the second defendant viz., the first respondent in this appeal, what is
relevant and crucial is not only the factum of registration of Ext.128 and
its execution by the second defendant but also the admission of execution
of sale deed dated 04.07.1978 by him in favour of the first defendant.
C True that the second defendant contended that it was executed as a
collateral security for a money lending transaction. We have noted earlier,
by referring to the decision in Rohit Singh’s Case (supra) that a defendant
could not be permitted to raise counter-claim against a co-defendant as
by virtue of Order VIII Rule 6A, CPC, it could be raised by a defendant
D only against the claim of the plaintiff. Evidently, the High Court did not
frame the validity of the sale deed dated 04.07.1978 executed by the
second defendant in favour of the first defendant as a question of law
though the trial Court also arrived at a finding on this issue without framing
it as a specific issue. The indisputable fact is that the said sale deed
dated 04.07.1978 was admittedly, executed and registered about nine
E (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 20
guntas in Survey No. 20/2 of Gangalgaon village and the first defendant
is also an executant of the same. The observation and finding of the
High Court in the first limb of paragraph 24 of the impugned judgment
F that the second defendant did not dispute the sale of one acre of land to
the plaintiff as per Ext. 128 for the consideration of Rs. 3000/- would
indicate that the balance amount of Rs. 7000/- was the consideration for
the balance extent of land covered under Ext. 128. Since the validity of
the 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 subject
G suit and was rightly, not raised as an issue, the first defendant not only
did not dispute the sale of such extent to the plaintiff but admitted the
joint execution of Ext. 128 and receipt of sale consideration, as
incorporated in Ext. 128 and since the second defendant got no case
that he had assailed the validity of the sale deed dated 04.07.1978 either
H before any competent authority or competent Civil Court this question
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI 201
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
needs no further elaboration. An inter-se dispute on the validity of the A
sale deed dated 04.07.1978, if at all between the second and first
defendants, could not have been considered in the subject-suit, for the
reasons already mentioned as it would amount to adjudication of right or
a claim, by way of counter-claim by one defendant against his co-
defendant. Finding on its voidness under the Fragmentation Act was
B
already held as unsustainable by us.
35. In the context of the contentions of the second defendant/the
first respondent herein against Ext. 128, taking note of its registration
and the admission of its execution it is only proper to refer to Sections 91
and 92 of the Evidence Act. Certainly, parol evidence is admissible to
show that a contract embodied in a document was never intended to be C
acted upon but was made for some collateral purpose. But, in view of
the specific finding in the judgment of the High Court, which is in favour
of the second defendant, that the consistent stand of the second defendant
is that he has sold one acre of land by the sale deed at Ext.128 for a total
consideration of Rs. 3000/- and admission of execution of sale deed D
dated 04.07.1978 in favour of the first defendant and in the absence of
anything on record establishing annulment of the said sale deed and also
in view of the fact that the first defendant is also a co-executant. We do
not think it proper or necessary to enter into the extrinsic evidence relating
sale transaction covered by sale deed dated 04.07.1978. It is to be noted
that here, by virtue of Section 54, of the Transfer of Property Act and E
Section 17 of the Registration Act and since the immovable property
was worth more than Rs. 100/- Ext.128 was reduced in writing and
registered. The intention of the parties are also reflected specifically in
Ext.128 and at the same, nothing reflecting a contra-intention not to pass
the title and ownership in present even impliedly therein. In other words, F
the need to take into consideration the surrounding circumstances and
the conduct of parties in deciding the passing of title would arise only if
the recitals in the document are indecisive and ambiguous. The oral
evidence 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, G
no other question(s) need be considered. The upshot of our consideration
as above, is that the High Court has committed a serious error based on
perverse appreciation of evidence, in setting aside the judgment and
decree of the First Appellate Court decreeing the subject suit and in
restoring the decree of dismissal of the suit of the trial Court. H
202 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 36. In the result, we allow the appeal with costs and set aside the
judgment and final order dated 30.10.2015 in Second Appeal No. 435 of
1995 passed by the High Court of Judicature at Bombay, Nagpur Bench
restoring the decree of the court of Joint Civil Judge, Junior Division,
Chikhli in Regular Civil Suit No. 257 of 1985. Consequently, we restore
the judgment and decree of the Court of Additional District Judge, Buldana
B
in Regular Civil Appeal No. 98 of 1987 arising from the judgment and
decree in Regular Civil Suit No. 257 of 1985.
Nidhi Jain Appeal allowed.
(Assisted by : Tamana, LCRA)
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