1. This is defendant's second appeal against the judgment and decree passed against him in regular civil appeal No. 199 of 1972 by the learned District Judge at Aurangabad who reversed the judgment and decree of the trial Court i.e. Civil Judge, Junior Division, Jalna in regular civil suit No. 71 of 1969 and it arises out of the following facts.
2. The suit land survey No. 22/2 admeasuring 10 acres 4 gunthas situated at village Somthana in Jalna Tahsil of the Aurangabad district was of the ownership of the defendant. The plaintiff alleged that the defendant sold this land to him for an amount of Rs. 3,000/- by a registered sale deed dated 18-4-1966 and handed over possession of the land to him. He alleged further that in June, 1968, the defendant unlawfully dispossessed him and hence he filed this suit for possession and for past mesne profits etc.
3. The defendant resisted the suit on several grounds. He denied the execution of the sale deed, the handing over of possession and the alleged forcible dispossession. He contended that he had obtained some loan from Co-operative Society for sinking a well in his land and he was short of the funds, for proceeding with the work further he approached the plaintiff for a loan of Rupees 1000/-. According to the defendant, the plaintiff agreed on 16-4-1966 to advance him a loan of Rs. 1000/- on the condition that the defendant executed a simple mortgage of the suit land in his favour. According to the defendant they went to Jalna on 18-4-1966 for the execution of the deed and at that time the plaintiff practised fraud, undue influence and misrepresentations on him and obtained from him a sale deed in respect of the suit land. It is sufficient to state that the details about the fraud, undue influence stated by him in para 4 of his written statement are totally different from the particulars given by him in his sworn testimony before the trial Court, The defendant contended further that the sale deed was a sham, bogus document and was not to be acted upon and was in the nature of a simple mortgage under which the plaintiff had obtained a security for the loan.
4. Issues were framed and evidence was led and after considering this evidence the learned trial Judge held in favour of the defendant on all the issues. He held that the defendant proved fraud and misrepresentation and also the failure of consideration. He held that the transaction was unconscionable as the market price was far more than Rupees 4000/-. He held that the contentions of the defendant were not barred by Section 92 of the Indian Evidence Act and consequently he dismissed plaintiffs suit with costs.
5. Being aggrieved by this decision, the plaintiff preferred civil appeal No. 199 of 1972 in the District Court at Aurangabad and the appeal was heard by the then District Judge at Aurangabad. The learned District Judge held that the defendant failed to prove that the transaction was of the simple mortgage. He held further that the plaintiff acquired title to the suit land and was entitled to the possession and past mesne profits. Consequently he reversed the decision of the trial Court and passed a decree in favour of the plaintiff for possession and for past mesne profits as well as for future mesne profits with costs of both the Courts.
6. Being aggrieved by this decision the defendant has preferred this second appeal.
7. The first and foremost objection on behalf of the appellant by Mr. Vaishnav is that the lower appellate Court was wrong in rejecting the evidence of Ex. 56. The learned District Judge has pointed out that Ex. 56 was exhibited by the trial Court after the entire evidence was over and after the arguments were heard. He has further observed that the plaintiff had no opportunity to meet this document. The learned District Judge therefore refused to rely upon this document although this document is exhibited in the Court. According to Mr. Vaishnav, Ex. 56 is a public document and as such it ought to have been exhibited. First of all we shall proceed to see the nature of the document and then we shall consider its admissibility further. This is a letter dated 6-8-1971 by the Manager of Aurangabad District Cooperative Land Mortgage Bank to the defendant. Although it is styled as a letter it seems to be a certificate. Under this letter, the Manager informed the defendant by way of certificate that the defendant mortgaged his land survey No. 22/2 on 20-12-1965 for a new well and Rs. 2500/- were advanced to him by way of loan and that is why this certificate was issued. Mr. Vaishnav invited my attention to the definition of the word, 'public officer' in Section 2(17)(h) of the Civil P. C. The word, 'public officer' means a person falling under any of the following descriptions, namely -- (h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty. Then Mr. Vaishnav invited my attention to the provisions of Sections 74, 75, 76, and 77 of the Indian Evidence Act and according to him, the Manager of the District Co-operative Bank falls within the category of public officer and hence any letter written by him in the form of a certificate to the defendant is a public document and it should be exhibited without any proof. I am not in agreement with this submission. There is nothing to hold that this Manager of the District Co-operative Land Mortgage Bank falls within the definition of 'public Officer' as stated in Section 2(17)(h) of the Civil P. C. Section 74 of the Indian Evidence Act runs as follows :--
'74. The following documents are public documents :--
(1) Documents forming the acts, or records of the acts:--
(i) of the sovereign authority.
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive of any part of India or of the Commenwealth, or of a foreign country.'
I have pointed out that there is nothing to hold that the District Co-operative Land Mortgage Bank's Manager is a public officer ant? hence this document cannot be read in evidence.
8. Assuming for a moment that this document can be read in evidence, it does not make much difference in the situation. According to the defendant he had already obtained some loan from the Aurangabad District Co-operative Land Mortgage Bank and that this amount which was obtained by him for sinking a well in his land was already exhausted and that is why he wanted some more amount as he was short of funds and so he approached the plaintiff for loan of Rs. 1000/-. Now according to the defendant his talks with the plaintiff took place on 16-4-1966 and hence it is natural to infer that the defendant must have borrowed part of the loan from the District Co-operative Land Mortgage Bank and must have exhausted that amount prior to 16-4-1966. Mr. Vaishnav was very fair enough to admit that the record shows that the first instalment of the loan was taken by the defendant from the said Bank on 25-5-1966. This is borne out by Ex. 48. It is therefore quite clear that the first instalment of loan was obtained by the defendant on 25-5-1966. Thus his very basis that prior to 16-4-1966 he had exhausted the loan that was taken by him from the Bank and so he approached the plaintiff for a loan of Rs. 1000/- falls to the ground and the learned District Judge has rightly pointed out this fact.
9. That takes me to the next contention raised by Mr. Vaishnav about fraud, undue influence and misrepresentation and I am reproducing the contents in para 4 of his written statement.
'That the said sale deed dated 18-4-1966 is a void and ineffective document on the following grounds :
(i) The defendant never gave free will and consent to execute a 'sale deed' dated 18-4-1966.
(ii) The defendant was kept in dark by the plaintiff regarding the execution of the sale deed so no real nature of the document was explained to the defendant at that time.
(iii) That at that time the parties were not on equal footings.
(iv) The defendant could not get an independent advice in the said matter.
(v) That the defendant is an illiterate person, he does not know reading and writing.
(vi) That the defendant never received the alleged consideration amount of Rs. 3000/- from the plaintiff at the time of the execution of the alleged sale deed.
(vii) That the plaintiff has abused the confidence reposed in him by the defendant.
(viii) That the possession of the suit land was not delivered to the plaintiff by the defendant.
(ix) That at the time of the alleged sale deed sugar cane crop of the defendant worth Rs. 2000/- was standing in the suit land.
(x) That the alleged transaction of sale is unconscionable one as the markat price of the suit land is more than Rs. 40,000/- The defendant has spent Rs. 4500/- for digging and construction of well in the suit land so it is quite impossible that he would have sold it for Rs. 3000/- only.
(xi) That the defendant has no other source of income except the suit land so it is quite impossible that he would sell it to the plaintiff for Rs. 3000/- only.
(xii) The plaintiff never demanded possession of the suit land to the defendant and never cultivated the suit land and entries are in the name of the defendant only regarding ownership and cultivation.
(xiii) The defendant also gave jawar in the society as per the Tahsil office in the last year.
(xiv) The said sale deed is sham and nominal document'.
Now I shall point out from the sworn testimony of the defendant that he has made out a totally different case in his sworn testimony before the trial Court. In his sworn testimony he has first of all referred to the talk of mortgage etc. and he stated that on the very next day of the talks, they went to Jalna for the deed, He then stated that first of all they went to Pukhraj and Parasmal and along with them he, plaintiff and Vishwanath went to the registration office. He stated that he handed over money for the stamp purchase and the plaintiff purchased the stamp and all of them then went to the Sub-Registrar's office. He stated that they waited outside and the plaintiff went inside and obtained a deed. He then stated that the deed was handed over to him and then he came to know that instead of a mortgage, the plaintiff had obtained a sale deed from him for an amount of Rs. 3000/-. He then stated that he refused to sign to such a deed and that the plaintiff assured that after he repaid the amount, he (i. e. plaintiff) would reconvey the land. The defendant stated further that he (plff.) swore by his son that he would reconvey the land after the amount was repaid to him and that the defendant should rely upon his oath and the words. The defendant is positive that at this time both Pukhraj and Parasmal were present and that both of them observed that the defendant should rely upon the words of the plaintiff. The defendant stated further that both of them advised him that he should rely upon the assurances given to him by the plaintiff and should execute a sale in the name of the plaintiff. He stated further that on account of such assurances and advice he signed the sale deed on that day. It is therefore quite apparent that the story narrated by him in his sworn testimony is totally different from the contentions raised in para 4 of his written statement which are reproduced earlier. This fact itself is sufficient to reject the defendant's contention about fraud, undue influence and misrepresentations. Mr. Vaishnav wanted to rely on the fact that the plaintiff was monad man owning about 100 acres of land. Relying upon this fact Mr. Vaishnav alleged that the plaintiff being a monad man was in a dominant position. It is not that all monad men in the village are in a dominant position over all other non-monad men in the village. Then Mr. Vaishnav urged that there was inadequacy of consideration. On this point, the defendant's own witness Uttamrao, D. W. 3, Ex. 45 has falsified him. This Uttamrao is owner of adjacent land. In his cross-examination this witness Uttamrao stated that at the time when he purchased the adjacent land he would have purchased the disputed land for Rs. 3000/- or Rs. 3500/- and not for any more amount. In this respect Mr. Vaishnav wanted me to read his deposition with reference to some context and the context is that this witness had already purchased the adjacent land. I fail to realise how this context goes to show that the price of the land is more, This Uttamrao made a clear statement that he would have purchased the suit land only for Rs. 3000/- or Rs. 3500/-and not for more amount. It means that this was the proper price of the land. Mr. Vaishnav urged that this witness purchased the adjacent land of 5 acres for an amount of Rs. 3000/- or so. Mere area has nothing to do with the price. It is the quality of the land that is material. There is nothing on record to hold that the quality of the land purchased by Uttamrao is of the same quality as of the suit land. At any rate Uttamrao has clearly stated that he would not have purchased the suit land for any amount more than Rs. 3000/- or 3500/-. In view of this statement the mere statement of the defendant about the price is of no help to him and this admission itself clinches the issue.
10. It was then urged by Mr. Vaishnav that there is no evidence to show that the money of Rs. 3000/- was paid to the defendant. I have pointed out that the defendant himself is making out inconsistent case and, therefore, he is not a reliable man. The plaintiff has stated that he paid the amount of consideration, Plaintiff's witness Tukaram Abaji, P. W., 2, Ex. 28, stated that there was higgling about the price in the beginning and ultimately the matter was settled at Rupees 3000/- and immediately after the settlement of the price, the plaintiff paid the whole amount of consideration of Rupees 3000/- in cash in his presence. Now this Tukaram P. W. 2 has admittedly attested the sale deed in question. Mr. Vaishnav urged before me that the lower appellate Court has made a misstatement in his judgment about the presence of Tukaram at the time of talks. I am not in agreement with him, In para 2 of his written statement the defendant has made a clear cut statement that the talk took place on 16-4-1966 in the presence of witness Shri Parasmal and the witnesses who have signed on the alleged sale deed dated 18-4-1966. It is therefore a clear admission on the part of the defendant in his written statement that those witnesses who have signed On the sale deed dated 18-4-1966 were present at the time of talks. In his sworn testimony the defendant may say anything but the admission in the written statement goes against him. Here again there is one more circumstance. In his written statement he clearly stated that the talks took place on 16-4-1966 and they went to Jalna for the deed on 18-4-1966; whereas in his sworn testimony the defendant stated that they went to Jalna on the very next day after the talks. Then Mr. Vaishnav relied upon the fact that there is no love lost between this Tukaram P. W. 2 and the defendant and for this purpose Mr. Vaishnav wanted to rely upon a statement made by the defendant that there was some illwill between the defendant and Tukaram on account of some cattle. It is significant to note that in his cross-examination nothing is put to Tukaram on this point and hence it can clearly be said that this statement of the defendant is an afterthought.
11. Mr. Vaishnav then made a grievance that the lower appellate Court has not properly appreciated the defendant's statement and Parasmal's statement. I have pointed out earlier the defendant's statement that Parasmal advised him to rely upon the oath and word of plaintiff and to sign the sale deed. But significantly Parasmal has not uttered a word about it in his sworn testimony before the trial Court. In para 4 of his deposition Parasmal stated that after reaching sub-Registrar's office he and Pukhraj went to Tahsil office and that the document was not completed in his presence. Parasmal stated further that on the same date after sometime defendant met him and told him that the plaintiff obtained from him the sale deed of the suit land for an amount of Rupees 3000/-. It is therefore quite significant to note that Parasmal does not at all support the defendant in any manner and hence the defendant has totally failed to prove his case On this point.
12. Lastly Mr. Vaishnav urged before the that the relationship between the parties should be taken into consideration. He urged before me that the parties were cousin brothers and that the defendant is being deprived of his land for a paltry amount of Rs. 1000/-. This statement of Mr. Vaishnav cannot be accepted. The sale deed is a registered sale deed for an amount of Rs. 3000/-. The admission of defendant's witness Uttamrao goes to show that the price of the land could not be more than Rs. 3000/-or Rs. 3500/-. In this background the mere relationship of the parties being cousin brothers does not weigh in favour of the defendant and hence there is absolutely no case made out by the defendant to prove that there was any fraud, undue influence or misrepresentation by the plaintiff in the matter of this sale deed and I am therefore satisfied that the decision of the learned District Judge is quite correct and there is no merit in this appeal and it deserves to be dismissed.
13. In spite of strenuous efforts made by Mr. Vaishnav, he could not take the case of his client any further.
14. In the result, the appeal is dismissed with costs.
15. Appeal dismissed.