J.N. Patel, J.
1.Heard learned Counsel for the parties.
2.On 10.12.1983, when this appeal came to be admitted, this Court formulated substantial points of law as 1 to 4 out of the grounds of objection, stated in the appeal memo. On hearing the learned Counsel for the parties, in the opinion of this Court the only substantial question of law which is required to be decided in this Appeal is 'as to whether the plaintiff under the Registered Sale Deed dated 08.06.1966 having purchased field survey no.187/1, have also purchased 4 Mango trees standing thereon, from the original defendant Girdharilal'.
3.The indisputable facts of the case are that the plaintiff purchased the field Survey no.187/1 under the sale deed dated 08.06.1966 for a consideration of Rs. 2500.00. A sale deed came to be executed by the parties, after it was prepared by the petition writer who is the scribe of the sale deed. The controversy relates to the recital in the sale deed in so far as the mango trees are concerned. According to the plaintiff, he has purchased the suit field along with 4 mango trees standing thereon. Whereas it is the case of the defendant, that he has not sold the mango trees to the plaintiff.
4.There is no dispute as regards the fact that the sale deed (Exh.27) was duly executed by the defendant - Girdharilal and it was got registered on the very same date i.e. on 08.06.1966. The whole controversy revolves around the recital in the sale deed Exh.27. It is the case of the parties to the suit, that when the sale deed was scribed by the petition writer, the plaintiff (Purchaser) objected to the recital '-------------------------------------------------------------------------------------------------------------' The said portion in the sale deed is marked as portion 'A'. This part of the recital came to be deleted at the insistence of the plaintiff, that he has agreed to purchase the suit field along with the mango trees, and therefore it was objected by him, because of which the recital portion marked 'A' came to be deleted and was initialed. The main controversy is in respect of the recital marked as portion 'B' in the sale deed (exh.27) which reads as '-----------------------------------------------------------------------------------------------' This according to the plaintiff is an interpolation and was never agreed upon by him. Whereas it is the contention of the defendant that on deletion of the recital portion marked 'A', it is with the consent and knowledge of the plaintiff that the recital portion marked 'B' came to be added, and once the plaintiff has accepted the sale deed with necessary amendment i.e. the deletion of the portion marked 'A' and addition of portion marked 'B', therefore the plaintiff now cannot claim to have purchased the mango trees and that trees were purchased by him along with the suit field described in para no.1 of the plaint, and denied the claim of the plaintiff. The trial court therefore dismissed the suit of the plaintiff for claiming declaration and injunction as a consequence of this the ancillary relief of damages and so on did not survived.
5.The plaintiff aggrieved by this judgment and decree dated 30.11.1970 passed by the Civil Judge, Senior Division, Akot in Regular Civil Suit No.145 of 1967, preferred an appeal before the District Judge, which came to be registered as Regular Civil Appeal No. 29/1971, and by judgment and order dated 18.03.1986, the lower appellate court held that the plaintiff have proved that they became the owners of the mango trees under sale deed Exh.27, and that the portion marked 'B' in the sale deed [Exh.27] has been fraudulently inserted by the defendant without their knowledge, by interpolating the words therein, and therefore the plaintiffs are entitled to declaration that they have purchased the suit field along with the mango trees, but rejected the claim of the plaintiff for damages. Now it was defendants turn to prefer this Second Appeal.
6.Mr.S.R.Deshpande, the learned Counsel appearing for the appellant / original defendant, who are now substituted by the legal heirs, submitted that the lower appellate Court has given a decision by misconstruing the sale deed [Exh.27]. It is submitted that when the document was executed and presented before the Sub-Registrar, the plaintiff never objected to the recital portion marked 'B' in Exh.27, and in case of this recital portion marked 'B' the appellate court could not have come to the conclusion and give a finding that the mango trees were sold with the suit field itself, which is based on the recital in the document i.e. Sale deed dated 08.06.1966, which clearly records that the defendants did not convey the ownership right in the 4 mango trees situated in the field survey no. 187/1, and therefore, it could not be held that the trees are transferred to the plaintiff. It is further submitted that the plaintiff has not been able to prove that the defendant, fraudulently got the recital portion marked 'B' inserted in the document, particularly when there is a finding on record showing that the document was prepared, executed and presented for execution in the presence of the parties and at that time the plaintiff did not raise any objection in the matter.
7.Mr. S.R.Deshpande, the learned Counsel, further submitted that the judgment and decree passed by the first appellate court deserves to be set aside and the judgment of the trial court is liable to be restored, on the ground that the transfer as recorded in the sale deed Exh.27, will have to be accepted which does not confer any title or right in favour of the plaintiff in so far as it relates to the mango trees. It is also canvassed that in spite of the fact that the sale deed, after it was executed and registered was in possession of the plaintiff for about one year, he did not made any protest till the filing of the suit or issued any notice raising such a grievance.
8.In support of his contention Mr. S.R.Deshpande, the learned Counsel submitted that the recital portion marked 'B' is in consonance with the practice prevailing in the region, and in support of his contention has placed reliance on the decision of this Court rendered in the case of Shrinivas and another ..vrs.. Sunderbai and another 1974 Mh.L.J. 51.
9.On behalf of the respondent / plaintiff, it is submitted by Mr. C.A.Joshi, the learned Counsel; appearing on their behalf, that the findings of the First Appellate Court are based on appreciation of content of the document i.e. Exh.27, and attending circumstances which clearly goes to show that the plaintiff have agreed to purchase the suit property along with the 4 mango trees, and that on realizing the the 4 mango trees were excluded from the sale deed objected to it and got it deleted. It is submitted that the defendant in connivance and in collusion with the scribe inserted the recital portion marked 'B' to his advantage by retaining the rights in the mango trees, which admittedly was never agreed by the plaintiff, and therefore the appellate judgment and decree impugned in this appeal deserves to be upheld.
10.I propose to examine the case by first referring to the judgment rendered by this Court in the case of Shrinivas (cited supra). With due respect to the learned Counsel for the appellants, in my opinion the judgment does not apply to the facts of the case between the parties, as the said judgment is in reference to tenants right in trees under statutory transfer and it is in context with the various provisions of the Bombay Tenancy and Agricultural Lands (V.R.) Act (99 of 1958), Section 41,42, 46,49-A, 47, 90, 2 (17), 25, 26 M.P.Land Revenue Court (2 of 1954), Section 162 of Maharashtra Land Revenue Code (41 of 1966), Section 25 of Transfer of Property Act (4 of 1882). In this case, the transaction is not between the landlord and tenant, but between the seller and purchaser under the Transfer of Property Act. Section 8 of the Transfer of Property Act, provides as under:
8.Operation of transfer : Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.'
This section is rule of construction which avoids speculation as to the particular interest which was in the mind of the transferor. The general presumption is in favour of the transfer of all the interest of the transferor in the immoveable property sold by him. The presumption of transfer of all the interest can be rebutted by express words or by necessary implications, as it clearly lays down that unless a different intention is expressed or necessarily implies the transfer of property passes forthwith to the transferor all the interest which the transferee is than capable of passing in the property and for the legal understanding thereof.
11.In the present case, we are concerned with the transfer of agriculture fields, and therefore, it will have to be construed with the incident of which reference is made in Section 8 i.e., where such property is land, the easement annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth. For our purposes all things attached to the earth assumes significance. Section 3 of the Transfer of Property Act, is an interpretation clause and in respect of all 'things attached to the earth' states that attached to earth means (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached; Therefore clause (a) of the definition of attached to the earth given in the interpretation clause i.e. Section 3 of the Transfer of property Act, has to be read and given its plain meaning. There can be no confusion that attached to earth would mean and include trees and shrubs. Here also the tangible definition is made and some authorities laid down by the Court while interpreting this clause have held that the standing timber cannot be considered as attached, but than it is not the case of the defendants that the 4 mango trees which is the subject matter of the dispute are standing timber because the fruit bearing trees would not be standing timber and will have to be classified as immoveable. On the other hand there is evidence on record that the plaintiffs realized the mistake only after one Takaullakhan came to pluck mangoes from the trees claiming that the defendant has sold the fruits of the mango trees for the sum of Rs.300.00. Till then the plaintiff was ignorant of the recital portion marked 'B', which came to be inserted in the sale deed after deletion of recital portion marked 'A'. The defendant does not dispute that the plaintiff and his witness were illiterate person. Whereas the evidence on record fortifies the same. The learned Trial Court disbelieved the plaintiff and his witness mainly on the ground that the plaintiff Pandurang and the evidence of his witness - Maroti isn't reliable, because in the cross examination the plaintiff state that there is absolutely no mention about the mango trees in the sale deed and later on he admitted that it was mentioned in the sale deed that he would have no right in mango trees. Similarly his witness was not found to be reliable as he was party to some Civil Suit and Criminal Prosecution, and is a habitual litigant and therefore, before the document was presented for execution, he could have definitely got it verified as was found from the evidence of the plaintiff and that if the necessary changes as demanded by the plaintiff i.e. by deletion of recital portion marked 'A' came to be made, the plaintiff or his witness did not feel it necessary that the documents be again read over to them before it is executed and registered. The trial courts approach is totally erroneous on appreciation of the evidence of the plaintiff. If one considers the evidence of the plaintiff and his witness, and that of the defendant it is crystal clear that the plaintiff was not prepared to buy the land without the mango trees and therefore, when the document i.e. Sale Deed Exh. 27, was read over to him he specifically objected to the recital '---------- ------------------------------------------------------ ---------------' and it came to be deleted. In all probabilities the defendant got the recital portion marked 'B' inserted in the sale deed [Exh.27] which has been duly appreciated by the learned lower appellate court. It appears from the evidence, that the plaintiff was satisfied once, the portion marked 'A' in the sale deed [exh.27] came to be deleted, and did not realize that the field survey no.187/1 has been conveyed to him along with the mango trees by virtue of the deletion of the clause - portion marked 'A' but taken away by adding the clause portion marked 'B', in Exh.27. It does not appeal to reason or logic that the plaintiff who has objected to the clause portion marked 'A' by which he was being deprived of the 4 mango trees would have agreed to the recital i.e.. portion marked 'B', which would deprive him of the mango trees.
12.The First Appellate Court has considered the very transaction in para no.15 of the impugned judgment and has rightly come to the conclusion that portion marked 'B' in Exh.27, has been interpolated and the plaintiff being the illiterate person did not realize the mischief which the defendant had committed by referring to the attending circumstances in para no.16 of the said judgment.
13.The learned lower appellate Court has reproduced the part of the evidence in which the defendant himself has admitted that the plaintiff objected to the recital which is portion marked 'A' in the sale deed Exh.27, which came to be scored off and initialed by the parties. The lower appellate court is justified in arriving at a conclusion that other material at different places was written at portion marked 'B', which is not initialed even by the defendant, and therefore that is interpolation and it can be inferred that the same has been inserted without the knowledge of the plaintiff, therefore such a condition is not binding as a result of which the plaintiff get right over the entire trees as well.
14.The fact that the plaintiff objected to the recital that the mango trees are excluded from the sale and it was required to be deleted, goes to show that the dominant intention of the plaintiff was in purchasing the suit field along with the mango trees. One fails to understand that if the plaintiff have objected to the portion marked as 'A', excluding the mango trees from the same, than whether he would agree to the addition of the recital portion marked 'B', excluding his right over the mango trees.
15.Therefore, this court finds that the impugned judgment and decree is just and proper, and the findings arrived at by the first appellate court that the plaintiff purchased the suit field along with 4 mango trees deserves to be upheld. As a result of which the appeal fails and is dismissed with costs.