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Civil Appeal No.930 of 2023

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.930 of 2023

(@ Special Leave Petition (C) No.10747 of 2016)

Damodhar Narayan Sawale (D) through LRs.

…Appellant (s)

Versus

Shri Tejrao Bajirao Mhaske & Ors.

…Respondent (s)

J U D G M E N T

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, 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

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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,

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 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 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

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Civil Appeal No.930 of 2023

for discharging 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 deed 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

second 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

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

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Civil Appeal No.930 of 2023

respondent No. 6, as per order 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 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 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 (Exhibit 128),

is that though it was executed as a sale deed, what had

actually transpired was nothing but an execution of sale

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Civil Appeal No.930 of 2023

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

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 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 ‘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/-.

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4. Based on the rival pleadings, the trial Court

formulated the 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.

that he purchased the suit

field from Defendants as

alleged?

2. Does he further proves In the negative.

that the suit sale deed is for

legal necessity?

3. If the Plaintiff entitled to In the negative.

the possession of the suit

field along with enquiry into

mesne.

4. Does the Defendant No.2 In the affirmative.

proves that the suit sale

deed is bogus, sham and

nominal as alleged?

5. Does the further proves In the affirmative.

that the Plaintiff deals in

money landing without

licence?

6. Does he further proves In the affirmative.

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Civil Appeal No.930 of 2023

that the sale deed in suit

was made as per the

agreement given in para 9 of

the Written Statement?

7. Does he further prove that In the affirmative.

the suit field is owned by

other persons?

8. Does he further proves In the affirmative.

that the permission of the

District Judge, is required for

the suit sale deed as

alleged?

9. Does he further proves In the affirmative.

that he is a marginal owner

as alleged in para 14 of the

Written Statement.

10. Reliefs and costs? As per final order.

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

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Civil Appeal No.930 of 2023

deed was a 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 consideration based on the rival

submissions and returned the following findings: -

POINTS FINDINGS

1. Whether it is proved by the plaintiff Yes

that defendant No.2 had executed

sale deed in his favour under Ex.

128 and he has become owner of

the property?

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

collateral security for money

lending transaction?

3. Whether Plaintiff is entitled to the Yes

possession of suit property?

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

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Civil Appeal No.930 of 2023

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

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 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 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

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.

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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 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 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 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 the basis of the evidence on record, that

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Civil Appeal No.930 of 2023

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

Gujarat

2. Therefore, if a relevant material legally

brought on record and the question 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 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.

(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 admitted execution of registered

1

(2013) 11 SCC 163

2

(2014) 7 SCC 716

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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 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 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 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

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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 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 that despite the admission of the

execution and registration of Exhibit 128 sale deed dated

21.04.1979 by the second defendant in favour of 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 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

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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

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 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 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 and, in fact,

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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.”

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 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.

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

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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 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 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 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

association or body of individuals, whether

incorporated or not, but nothing herein contained

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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 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.

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 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 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.

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We will deal with this aspect a little later. It will not be

inappropriate to look into the object 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 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 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 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

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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

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.

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:-

[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.

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21. In the above context, it is also relevant to refer to

Section 36 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 (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 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 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

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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 after 15

th

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 is 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

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 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

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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 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 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 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

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hereinafter, we are not inclined to remand the matter to

decide the question whether the second defendant/ the

first respondent 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 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 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 of such issues mentioned under the section in

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‘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 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 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 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

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Fragmentation Act’ was made out by the second

defendant.

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 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 counter claim arises need not necessarily arise

from or have any nexus with the cause of action of the

plaintiff.

26. The decision of this court in Rohit Singh and Ors.

v. State of Bihar

4 also assumes relevance in the above

context. This court held that a defendant could not be

3

(1996) 4 SCC 699

4

(2006) 12 SCC 734

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permitted to raise counter-claim against co-defendant

because by virtue of Order VIII Rule 6A, CPC, it could 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

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, 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

Act and Prevention of Fragmentation Act, the plaintiff is

not entitled to any relief.” Thus, when the indisputable

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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 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 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 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. So,

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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 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 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 readiness and

willingness to deliver the possession of it to the

plaintiff.”

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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, 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:-

“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 accordingly. The

plaintiff cannot, therefore, seek possession 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

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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. 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 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 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 the first defendant, void under the provisions of the

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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 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 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 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

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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 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.

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 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, 1882, read with Section 17 of the Indian

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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 ,

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 (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 was a genuine one. Thus, evidently,

the dispute is only in regard to the nature of transaction.

Being a registered one and apparently containing the

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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 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 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 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

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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 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 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.”

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 of registration of Ext.128

and admission of its execution and the recording of

payment of consideration thereon , the second

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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 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. 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 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

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specific issue. The indisputable fact is that the 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 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 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 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

before any competent authority or competent Civil Court

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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 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 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 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 dated 04.07.1978 in favour of the first

defendant and in the absence of anything on record

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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 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, 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, 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

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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.

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 in Regular

Civil Appeal No. 98 of 1987 arising from the judgment

and decree in Regular Civil Suit No. 257 of 1985.

….…...............,J.

(M.R. Shah)

.........................,J.

(C.T. Ravikumar)

New Delhi;

May 04, 2023