# DAMODHAR NARAYAN SAWALE (D) THROUGH LRS v. SHRI TEJRAO BAJIRAO MHASKE & ORS

- **Citation:** [2023] 6 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 2023-05-04
- **Case number:** Civil Appeal No. 930 of 2023
- **Bench:** M. R. Shah, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/damodhar-narayan-sawale-d-through-lrs-v-shri-tejrao-bajirao-mhaske-ors-37160
- **Pages:** 28

## Headnote

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
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
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
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 saledeed - 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
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
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 -
[2023] 6 S.C.R. 175
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SUPREME COURT REPORTS
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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.
Code of Civil Procedure, 1908 : Ord. VIII r. 6 A - Counterclaim 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
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
on the validity of the sale deed, if at all between the second and
first defendants, could not have been considered in the subjectsuit, 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
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
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

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DAMODHAR NARAYAN SAWALE (D) THROUGH LRS
v.
SHRI TEJRAO BAJIRAO MHASKE & ORS.
(Civil Appeal No. 930 of 2023)
MAY 04, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Maharashtra Prevention of Fragmentation and Consolidation
of Holdings Act, 1947 : Applicability of the Act - On facts, suit field
comprising 3 acres and 20 guntas - Vide registered sale deed, 2
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
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
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 saledeed - 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
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
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 -
[2023] 6 S.C.R. 175
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SUPREME COURT REPORTS
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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.
Code of Civil Procedure, 1908 : Ord. VIII r. 6 A - Counterclaim 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
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
on the validity of the sale deed, if at all between the second and
first defendants, could not have been considered in the subjectsuit, 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
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
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
such pleas would only work out to his detriment. [Para 19][191G-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
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statutory bar of jurisdiction under Section 36A of the Act. [Para
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
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]
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
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]
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,
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. 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
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
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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
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
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
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
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
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
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
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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 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 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.
[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
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. [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
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
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
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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
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
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 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.
[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
are also reflected specifically in Ext.128 and at the same, nothing
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reflecting a contraintention 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 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
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
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
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
[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
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.
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
TEJRAO BAJIRAO MHASKE & ORS.
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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
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 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 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
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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 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 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
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
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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/-.
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
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money landing without
licence?
6. Does he further proves
In the affirmative.
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 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
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
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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 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
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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.
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 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
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
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
TEJRAO BAJIRAO MHASKE & ORS. [C. T. RAVIKUMAR, J.]
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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 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 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
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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 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, 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
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
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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 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 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 partpromised.
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17. The term 'transfer' is a word in a broader sense and the word
'sale' is a specific word. Sale, going by the definition under T.P. Act,
presupposes transfer from one person to another of the right in 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. 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 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.
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS. v. SHRI
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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.
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.