1. In Special Civil Suit No. 183 of 1987, the trial Court passed a decree on 28.03.1991 holding that the plaintiff do recover the possession of the suit property from the defendants along with an amount of Rs.9,000/- as past mesne profit. An enquiry under Order XX, Rule 12 of C.P.C has also been directed to be made. Regular Civil Appeal No. 125 of 1991 preferred by the original defendant Nos. 1, 2 and 3 and Regular Civil Appeal No. 127 of 1991 preferred by one Yeshwant against the decision in Regular Civil Suit No.230A of 1991, were decided by the lower appellate Court by common judgment and order dated 24.03.1995. Appeal No. 125 of 1991 was partly allowed by setting aside the judgment and decree passed by the trial Court in Special Civil Suit No. 183 of 1987 to the extent of recovery of damages of Rs.9,000/-, but rest of the judgment and decree passed by the trial Court was confirmed. Regular Civil Appeal No. 127 of 1991 was dismissed. This second appeal is preferred by the original defendant Nos. 1, 2 and 3.
2. The undisputed factual position can be stated as under;
The dispute in the suit in question pertains to the land Survey No. 14, situated at Bhandaraj, Tq. Patur, Distt. Akola, owned by the plaintiff Awadhut Natthuji Molkar. The plaintiff alleged in the plaint that the registered sale deed dated 02.02.1983 was executed in the name of defendant No.2 Sau. Kusum Ramrao Bhagat and defendant No.3 Sau.Pushpabai Uttam Sarode by way of security for loan amount of Rs.6,000/- in respect of area of 2.43 HR from the eastern side of Survey No. 14. Thereafter two separate sale deeds dated 25.05.1984 were obtained by the defendant Nos.1 and 2, who are the husband and wife, in their separate names, in respect of area of 1.23 HR and 1.21 HR respectively by way of security to advance the loan to the plaintiff to meet the expenses for medical treatment of paralysis. The plaintiff alleged that all the 3 sale deeds were nominal, by way of security for loan and the plaintiff continued to be in possession of the suit property till the month of September, 1985, when the defendants dispossessed the plaintiff from the suit property. The defendants denied the claim of the plaintiff and took the stand that the sale deeds were executed by the plaintiff for valuable consideration and the transactions were out and out sale.
3. The Courts below have recorded the finding that the plaintiff has proved execution of sale deed dated 02.02.1983 for security of loan of Rs.6,000/- in favour of defendant Nos. 2 and 3 and it is also proved that the plaintiff agreed to repay the loan of Rs.12,000/- inclusive of the principal amount of Rs.6,000/-. The Courts have further held that the subsequent two sale deeds of the same date i.e. 25.05.1984 were also nominal, for security of the loan and the actual area covered by the sale deeds dated 25.05.1984 was not in existence. The Courts have held that the plaintiff has established his dispossession by the defendants from the suit property on the basis of the order of injunction passed in Regular Civil Suit No. 72 of 1983 and hence, the plaintiff is entitled to possession of the suit properties.
4. On 29.06.1985, this Court admitted the matter and passed the following order.
"Admit as substantial question of law as enumerated under grounds in the memo of appeal arise for consideration.
Interim stay as prayed"
5. The substantial questions of law in the memorandum of appeal are from ground (a) to (m) and the perusal of it would reveal that this Court is required to hear the second appeal as if it is hearing the special civil suit. Shri Mehadia, the learned counsel appearing for the appellant is, therefore, asked to address this Court on the specific substantial questions of law.
6. It is urged by Shri Medadia that in the absence of their being any prayer for setting aside the sale deeds, the suit in question was not maintainable. It is his further submission that the transactions in question were not void but were voidable in terms of Section 19 of the Indian Contract Act and therefore, there should have been a prayer for setting aside the sale deed and the suit should have been filed within a period of three years in terms of Article 59 of the Limitation Act. He submits that the suit having not been filed within 3 years from the date of transaction of sale, it is required to be dismissed as barred by time as prescribed under Section 3 read with Article 59 of the Limitation Act.
7. Shri Mehadia further submits that the Courts below have recorded the finding that the sale deeds were the money lending transactions by the defendants without holding the valid license of money lending and therefore, such an issue should have been framed by the trial Court. He submits that the case of the plaintiff is that, the defendant Nos. 2 and 3 who have purchased the part of the suit property by registered sale deed dated 02.02.1983 were not the agriculturists and in the absence of the permission of the Collector, as required by Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, the same was void. He submits that on both these aspects no issues were framed by the trial Court, which has caused serious prejudice to the appellants.
8. It is further urged that the Courts below should have dismissed the suit for misjoinder of parties and misjoinder of causes of action. He further submits that the trial Court has consolidated the suits and the common evidence has been led, which has caused serious prejudice to the defendants. He further submits that the findings recorded by the Courts below to hold that the transactions evidenced by all the three sale deeds were nominal and by way of security for loan are perverse and not supported by any evidence available on record.
9. The aspects of misjoinder of parties and misjoinder of causes of action are governed by Order I, Rules 8, 9 and 13 and Order II, Rule 3 and 7 of C.P.C. It is not the case of non-joinder of necessary parties. Be that as it may, Order I, Rule 9 states that no suit shall be defeated by reason of misjoinder or non-joinder of party and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Order I, Rule 13 states that all the objections on the ground of non-joinder or mis joinder of parties shall be taken at the earliest possible opportunity and, in all cases where the issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
10. Order II, Rules 3 and 7 under C.P.C being relevant are reproduced below.
O.II R.3 Joinder of causes of action
(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matter at the date of instituting the suit.
R.7 Objections as to misjoinder. All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
11. Shri Mehadia, the learned counsel for the appellants does not dispute that no such objections were raised regarding misjoinder of parties or misjoinder of causes of action either before the trial Court or before the lower appellate Court. In view of the provision of Order I, Rule 14 and Order II, Rule 7 of C.P.C., the objections are deemed to have been waived.
12. Apart from this, Section 99 of the Code of Civil Procedure being relevant is reproduced below.
"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
Provided that nothing in this section shall apply to non-joinder of a necessary party".
It is thus apparent from the aforesaid provision that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. In view of this provision, no substantial question of law arises for consideration in this second appeal on account of misjoinder of parties or causes of action in the suit in question.
13. Shri Mehadia, the learned counsel for the appellants has fairly conceded that if the findings recorded by the Courts below that the sale deeds were the nominal and by way of security for the loan transaction, it would not be necessary to incorporate the prayer for setting aside such sale deed as the transactions would be void. He further submits that the findings recorded by the Courts below that the sale deeds in question were nominal and by way of security for the loan transaction are perverse and liable to be set aside and this is the substantial question of law involved in the present matter.
14. With the assistance of the learned counsels appearing for the parties, I have gone through the findings recorded by the Courts below on the aspect of perversity. Both the parties have led oral as well as documentary evidence. The Courts below have held that the plaintiff has admitted the execution of sale deeds and therefore, the burden automatically shifts upon him to prove the facts by leading satisfactory evidence that the sale deeds were executed for security of loan obtained by him from defendant No. 1 through defendant No.4. Both the Courts below have considered the evidence of witnesses examined by the parties and it is held that the version of the plaintiff is supported by DW-1 Yeshwant, attesting witness on the sale deed examined by the defendants. The inconsistency in the evidence of defendant No.1 and his another witness DW-2 Damodhar has been considered and their version is disbelieved. The trial Court as well as lower appellate Court have taken into consideration the demeanor of the witnesses examined and it is held that the sale deeds contain a recital that the plaintiff was in need of money to meet the medical expenses for paralysis attack which he had suffered and DW-1 Yeshwant, the attesting witness, has admitted this fact.
15. The Courts have also taken into consideration the report of the handwriting expert Shri T.P.Patel examined at Exh. 67 to hold that the sale deeds dated 25.05.1984 did not bear the signatures of the plaintiff. The Courts have held that there is a discrepancy in the matter of evidence on the aspect of payment of consideration as reflected in the sale deeds and the evidence led by the defendants is not found to be trustworthy. The findings recorded by the Courts below are based upon appreciation of evidence and at any rate, it is a possible view of the matter, holding that the sale deeds executed were nominal and by way of security for the loan advanced by the defendant No.1 to the plaintiff. The Courts have held that though the sale deeds are in the name of different parties, the amount of loan was advanced by defendant No.1. There is no perversity in recording such finding.
16. Once it is held that the transactions in question were void, the bar of limitation prescribed under Section 3 read with Article 59 of the Limitation Act would not be attracted. The aspect of consolidation of suits for leading common evidence is merely an irregularity which would not give rise to any substantial question of law in view of Section 99 of C.P.C. Apartment from this, Shri Mehadia, the learned counsel could not point out the actual prejudice caused by adopting such procedure.
17. In view of above, there is no substantial question of law which arises for consideration of this Court. The second appeal is, therefore, dismissed.
At this stage Shri Mehadia, the learned counsel appearing for the appellant submits that the interim order of stay of possession was operating till this date and hence, the same may be continued for further period of six weeks. The interim protection of possession shall operate for further period of six weeks, after expiry of which it shall stand automatically vacated without reference to the Court.