SOPAN (DEAD) Vs. SYED NABI

JUDGEMENT

(1.) The appellant herein was the plaintiff in Regular Civil Suit No.237 of 1980 filed before the Civil Judge, Junior Division at Ahmedpur. The suit in question was filed seeking a judgment and decree for redemption of mortgage and recovery of the possession of the suit scheduled land. The land in question is situated in Survey No.2/A measuring 6 acres 2 guntas. The Civil Court by its judgment dated 20th September, 1984 accepted the contention of the plaintiff and decreed the suit whereby the redemption of the suit land was ordered treating the transaction to be a mortgage. The appellant herein, namely the defendant in the said suit claiming to be aggrieved by the said judgment was before the lower appellate court i.e. the Additional District Judge at Latur in Regular Civil Appeal No.233 of 1984. The Lower Appellate Court on reappreciation of the evidence on record and consideration of the legal position has through its judgment dated 29th June, 1990 allowed the appeal and set aside the judgment and decree of the Civil Court. Accordingly, the suit filed by the respondent herein was dismissed. The plaintiff/respondent herein therefore filed the Second Appeal before the High Court of Judicature at Bombay, bearing S.A.No.479 of 1991. The High Court on answering the substantial question of law in favour of the respondent herein had allowed the appeal and consequently decreed the suit. The appellant herein who was the defendant in the suit is, therefore, before this Court in the present appeal.

(2.) For the purpose of convenience and clarity the parties will be referred to in the same rank as assigned to them in the Civil Suit namely, the appellant herein would be referred to as the defendant, while the respondent herein would be referred to as the plaintiff.

(3.) The brief facts are that the plaintiff and the defendant were known to each other and due to such acquaintance, the plaintiff had taken money from the defendant as and when such financial assistance was required. At a stage when the plaintiff received a sum of Rs.5,000/-, the same was construed as the consideration for the land owned by the plaintiff bearing Survey No.2/A measuring 6 acres 2 guntas and the defendant already being put in possession of the said property, a registered sale deed dated 10 th December, 1968 was executed in favour of the defendant. A separate agreement dated 10th December, 1968 was also entered into between the parties whereby the plaintiff had agreed to repay the said amount and secure reconveyance of the property. Another agreement was entered into on 29th August, 1969 between the parties under which the respondent-plaintiff agreed that he has taken Rs.5,000/- from the appellant-defendant and the possession of the land was given. In addition, respondent-plaintiff has received a sum of Rs.2,224/- without any interest, in all Rs.7,224/-. The respondent-plaintiff agreed if the amount is not repaid on "Velamavasya" the deed will be considered as sale deed. It is in that background the plaintiff claiming that he is prepared to repay the amount so as to secure back the property and, in that regard, construing the transaction as a mortgage, got issued a demand notice dated 10 th September, 1980 through his Advocate. The defendant got replied the said notice on 23rd September, 1980 and disputed the claim put forth by the plaintiff. The plaintiff, therefore, filed the suit as stated above. The defendant entered appearance and filed the written statement disputing the claim. The trial court though had framed several issues, the entire consideration rested on the construction of the sale deed dated 10th December, 1968 and the contemporaneous documents, so as to consider whether the same amounts to a mortgage by conditional sale in the nature of contention put forth, or as to whether it is a sale transaction.