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TMI Blog1999 (2) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... eed from the appellant for Survey No. 21/AA of the same village on 29th January, 1973 as a security. After some time, the appellant was in a position to return the said amount with interest to the respondent - defend ant. Both, therefore, came to Gevrai for re-executing the sale deed in respect of Survey No. 21/AA. According to the appellant at that time respondent - defendant demanded ₹ 500/- more and he was not prepared to re-execute the sale deed in respect of Survey No. 21/AA unless and until ₹ 500/- more were paid to him by the appellant. As the appellant was not having ₹ 500/- more, the respondent asked the appellant to execute a sale deed in respect of suit field Survey No. 23/AA as a security towards the amount of ₹ 500/-. The appellant had therefore, executed the said sale deed and then only the respondent had re-executed the sale deed in respect of Survey No. 21/AA in favour of the appellant. It is the case of the appellant that despite the execution of the sale deeds by the appellant in favour of the respondent - defendant in connection with Survey Nos. 23/AA 21/AA both the lands remained with him as the sale deeds were nominal. As the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid findings that the document in question was liable to be declared as void and that the appellant was entitled to a permanent injunction against the respondent. The decree passed by the learned Trial Judge on 27th April, 1978 was to the following effect: The suit is decreed with costs as follows: (1) The sale deed bearing No. 2159 is declared null and void. (2) The defendant is hereby permanently restrained from interfering into the peaceful possession of the plaintiff over the suit field. Being dissatisfied the respondent - defendant carried the matter in appeal before the learned Extra Asstt. Judge, Beed. The appellate court, after hearing the respective parties, framed the following points for determination: (1) Whether the appellant proves that the sale deeds executed on 31st October, 1975 in respect of Survey No. 21/AA and 23/AA were in nature of exchange. (2) Whether the respondent proves his actual possession of the suit property i.e. Survey No. 23/AA 2 acres and 33 gunthas portion on the date of suit. (3) Whether the respondent proves that he executed the sale deed in respect of the suit property in favour of defendant for security of an amount of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contentions aforesaid, we find ourselves unable to sustain the decision rendered by the learned Single Judge of the High Court for the reasons that follow: It has to be kept in view that the learned Single Judge was exercising jurisdiction under Section 100 CPC as it was amended in 1976, A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial question of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of Judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. and Sheel Chand v. Prakash Chand , that the judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed. However, we have, with the assistance of the learned Counsel of both the parties, examined the meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of eastern side land from Survey No. 23/AA prior to the impugned suit transaction from one Tulsiram and, therefore, he was in need of extending his occupancy of Survey No. 23/AA in the Western part and that was the reason why he persuaded the appellant to enter into an agreement to exchange these lands. The respondent-defendant for the reasons best known to him did not think fit to produce either the sale deed under which he is said to have earlier purchased part of Survey No. 23/ AA from Tulsiram nor had he made any effort to prove the said transaction independently by examining the so called vendor, Tulsiram. This circumstances was relied upon by both the courts below for disbelieving the theory of oral agreement to exchange these lands. The learned Single Judge of the High Court, however, disagreed with the said finding reached by both the courts below and observed that non-production of sale deed by the defendant of the land purchased by him from Survey No. 23/AA had no significance because the plaintiff admitted it in his cross-examination and defendant specifically pleaded in paragraph 14 in the written statement. In fact, in para 6 of his deposition (exhibit 51/C), in cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction of 1973 in connection with Survey No. 21/AA was not a genuine sale transaction but was by way of a mere security for the loan taken by the appellant from the respondent and which was agreed to be reconveyed to the appellant in 1975 when he offered to repay the loan amount with due interest and at that stage for shortfall of ₹ 500/- respondent requested the appellant to execute the impugned sale deed for Survey No. 23/AA merely by way of security. It is also important to note that the impugned sale deed does not mention any consideration for the said transaction. It, therefore, ex-facie appears to be a nominal transaction not really effecting any sale of Survey No. 23/AA in favour of the respondent. All these vital aspects are glossed over by the learned Single Judge in the impugned judgment. It is also pertinent to note that both the courts below had taken the view and had reached a clear finding of fact that despite the execution of impugned sale deed, the plaintiff remained all throughout in possession of the land. That is the reason why ad-interim injunction was confirmed ultimately by the trial court and permanent injunction was issued against the respondent an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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