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CASE NO.: Appeal (civil)  3039 of 2008

PETITIONER: Vijya Kumar

RESPONDENT: Sukhdev

DATE OF JUDGMENT: 29/04/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T  NON-REPORTABLE

   CIVIL APPEAL NO 3039 OF 2008 (Arising out of SLP (C) No. 15481 of 2005)

       TARUN CHATTERJEE,J.

1.      Leave granted.   2.      The plaintiff in a suit for recovery of possession of  agricultural land as fully described in the plaint [hereinafter  referred to as "the suit land"] is the appellant before us.  The  plaintiff/appellant instituted the suit for recovery of possession of  the suit land on the basis of a sale deed dated 13th of July, 1992  executed by the defendant/respondent in his favour.  The  respondent, however, in his written statement raised the plea that  the transaction in question was not out and out sale but it was a  loan in substance. The trial court decreed the suit holding that the  transaction was an out and out sale.   3.      In appeal, the Appellate Court, however, reversed the  judgment of the trial court and dismissed the suit.  Feeling  aggrieved, the plaintiff/appellant filed a Second Appeal in the  High Court of Judicature of Bombay at Nagpur Bench, which  also affirmed the judgment of the appellate court. The  plaintiff/appellant, feeling aggrieved by the decision of the High  Court in the Second Appeal, has filed a Special Leave Petition,  which on grant of leave, was heard in presence of the learned  counsel for the parties.   4.      We have heard the learned counsel for the parties and  examined the judgment under appeal as well as the judgment of  the appellate court and the trial Court.  After having examined the  judgment of the High Court, judgments of the courts below and  other materials including oral and documentary evidence on  record, we are of the view that while affirming the findings of the  appellate court on the question whether the transaction was a loan  in substance or an out and out sale, the High Court had failed to  notice the material evidence on record. The High Court affirmed  the finding of the appellate court only on the basis that the trial  court had ignored the entries of the revenue record to the effect  that the mother of the respondent Gangubai was the co-owner of  the suit land and since Gangubai did not execute the sale deed in  favour of the plaintiff/appellant and had not been joined as a  party to the suit, the suit filed by the plaintiff/appellant on the  basis of the Sale Deed in which Gangubai was not one of the  executants would not be held to be maintainable. However, the  only question that was raised in the suit was whether the  transaction in question was an out and out sale or a loan in

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substance in which, in our view, the revenue record in respect of  the suit land was not material to be considered. From the perusal  of the record, we find that the respondent himself had admitted in  the evidence before the trial court that he had himself gone to the  office of the Registrar and registered the sale deed in favour of  the plaintiff/appellant. We also find from the record that the High  Court had failed to notice that the respondent sold the suit land in  the capacity of Karta (Manager) of the Joint Family and for  fulfilling the needs of the Joint Family.  That apart, the High  Court had failed to notice that even assuming that the mother was  a co-owner of the suit land, even then, the entire suit could not be  dismissed as the plaintiff/appellant had purchased from the  respondent who is admittedly a co-owner of the suit land. Be that  as it may, since the High Court had not considered the materials  on record, including the oral and documentary evidence, we are  of the view that the High Court was not justified in affirming the  judgment of the appellate court without taking into consideration  the above aspect of the matter and also the oral and documentary  evidence adduced by the parties to prove that the transaction in  question was an out and out sale and not a loan in substance.    

5.      For the reasons aforesaid, we set aside the judgment of the  High Court and the appeal is sent back to the High Court for  decision afresh in accordance with law after framing the  substantial question of law. The appeal is thus allowed to the  extent indicated above.  It is expected that the High Court shall  decide the second appeal within a period of six months from the  date of supply of a copy of this order to it. There will be no order  as to costs.