Case Note & Summary
The present second appeal arises from a property dispute between the original plaintiff (respondent) and the original defendant (appellant). The plaintiff filed a suit for declaration and permanent injunction based on sale deeds dated 29/04/1974. The trial court dismissed the suit, but the first appellate court partly allowed the appeal, setting aside the trial court's judgment and decree and allowing the plaintiff to execute the decree of possession against the defendant and to initiate proceedings for mesne profits. The defendant appealed to the High Court. The High Court framed two substantial questions of law: (1) whether the first appellate court was right in holding that the party is prevented from leading evidence by virtue of Sections 91 and 92 of the Evidence Act, even if the plea was only that the particular document was not intended to be acted upon; and (2) whether it was necessary for the defendants to have instituted a suit for specific performance of reconveyance of the field in his favour by virtue of an agreement Exh.137. The High Court held that the first appellate court erred in applying Sections 91 and 92 of the Evidence Act, as the defendant's plea was not to vary the terms of the sale deed but to show that it was never intended to be acted upon. The court further held that the defendant was not required to file a separate suit for specific performance of the agreement of reconveyance (Exh.137) to set up a defence of oral agreement for reconveyance. The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court dismissing the suit.
Headnote
A) Evidence Act - Sections 91 and 92 - Exclusion of Oral Evidence - The first appellate court erred in holding that the defendant was precluded from leading evidence to show that the sale deed was not intended to be acted upon, as the plea was not to vary the terms of the document but to show that it was never intended to be operative. The bar under Sections 91 and 92 of the Indian Evidence Act, 1872 does not apply when the plea is that the document was not intended to be acted upon. (Paras 6-9)
B) Specific Relief - Suit for Specific Performance - Necessity - The defendant was not required to file a separate suit for specific performance of the agreement of reconveyance (Exh.137) to set up a defence of oral agreement for reconveyance. The defendant can rely on such agreement as a defence in the suit for possession without seeking specific performance, as the plea is that the sale was not intended to be absolute but was by way of security. (Paras 10-12)
Issue of Consideration
Whether the first appellate court was right in holding that the party is prevented from leading evidence by virtue of Sections 91 and 92 of the Evidence Act, even if the plea was only that the particular document was not intended to be acted upon; and whether it was necessary for the defendants to have instituted a suit for specific performance of reconveyance of the field in his favour by virtue of an agreement Exh.137.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court dated 31/10/2003, and restored the judgment and decree of the trial court dated 09/04/1999 dismissing the suit.
Law Points
- Sections 91 and 92 of the Indian Evidence Act
- 1872 do not bar evidence to show that a document was not intended to be acted upon
- a suit for specific performance is not necessary to set up a defence of oral agreement for reconveyance
Case Details
2019 LawText (BOM) (12) 101
Second Appeal No. 34 of 2004
Mr. C.A. Joshi for appellants, Mr. B.N. Mohta for respondents
Gopal s/o Ramji Tajne (dead) through his legal heirs: Smt. Radhabai wd/o Gopal Tajne, Madankumar s/o Gopal Tajne, Bhushankumar s/o Gopal Tajne, Sau. Nayna w/o Shekhar Pohekar
Mukund s/o Sampat Khule (dead) through his legal heirs: Smt. Suryakanta wd/o Mukund Khule, Suresh s/o Mukund Khule, Shrikrushna s/o Mukund Khule, Ku. Baby d/o Mukund Khule, Ku. Subhadra d/o Mukund Khule, Ku. Sunanda d/o Mukund Khule (minor by guardian natural mother Smt. Suryakanta wd/o Mukund Khule)
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Nature of Litigation
Second appeal against judgment and decree in a civil suit for declaration and permanent injunction based on sale deeds.
Remedy Sought
Appellants (original defendants) sought to set aside the first appellate court's judgment allowing the plaintiff to execute decree of possession and claim mesne profits.
Filing Reason
The first appellate court reversed the trial court's dismissal of the suit and allowed the plaintiff's claim for possession and mesne profits.
Previous Decisions
Trial court (Civil Judge, Junior Division, Patur) dismissed the suit on 09/04/1999 in Regular Civil Suit No.41/1991. First appellate court (3rd Additional District Judge, Akola) partly allowed the appeal on 31/10/2003 in Regular Civil Appeal No.165/1999, setting aside the trial court's judgment and allowing the plaintiff to execute decree of possession and claim mesne profits.
Issues
Whether the first appellate court was right in holding that the party is prevented from leading evidence by virtue of Sections 91 and 92 of the Evidence Act, even if the plea was only that the particular document was not intended to be acted upon.
Whether it was necessary for the defendants to have instituted a suit for specific performance of reconveyance of the field in his favour by virtue of an agreement Exh.137.
Submissions/Arguments
Appellants argued that the first appellate court erred in applying Sections 91 and 92 of the Evidence Act, as the plea was that the sale deed was not intended to be acted upon, not to vary its terms.
Appellants argued that they were not required to file a separate suit for specific performance of the agreement of reconveyance (Exh.137) to set up a defence of oral agreement for reconveyance.
Ratio Decidendi
Sections 91 and 92 of the Indian Evidence Act, 1872 do not bar evidence to show that a document was not intended to be acted upon, as the plea is not to vary the terms of the document but to show that it was never intended to be operative. A defendant is not required to file a separate suit for specific performance of an agreement of reconveyance to set up a defence of oral agreement for reconveyance in a suit for possession.
Judgment Excerpts
Whether the first appellate Court was right in holding that the party is prevented from leading evidence by virtue of provisions contained in Sections 91 and 91 of the Evidence Act, even if the plea was only to the effect that particular document was not intended to be acted upon ?
Whether it was necessary for the defendants to have instituted a suit for specific performance of reconveyance of the field in his favour by virtue of an agreement Exh.137 ?
Procedural History
The plaintiff filed Regular Civil Suit No.41/1991 before the Civil Judge, Junior Division, Patur, which was dismissed on 09/04/1999. The plaintiff appealed to the 3rd Additional District Judge, Akola in Regular Civil Appeal No.165/1999, which was partly allowed on 31/10/2003, setting aside the trial court's judgment and allowing the plaintiff to execute decree of possession and claim mesne profits. The defendant then filed the present Second Appeal No.34 of 2004 before the Bombay High Court, Nagpur Bench, which was admitted on 03/06/2008 and decided on 17/12/2019.
Acts & Sections
- Indian Evidence Act, 1872: 91, 92
