RAGHUNATHJI SARAF Vs. SYED SHAH BAQUR HUSSAINI

JUDGEMENT

(1.) This is a defendants' second appeal against the Judgments and Decrees of the Courts below.

(2.) The plaintiffs brought the suit against the defendants one of whom was later on transposed as third plaintiff for a decree for redemption and possession of the suit schedule properties which consisted of shop premises in Sedam. The mortgage deed is of the year 1946. The consideration was for a sum of Rs.5,500/-(erst-while Hyderabad Rupia). One of the conditions in the mortgage deed was that if the mortgagors did not pay the amount within 10 years from the date of mortgage, the deed of mortgage itself would be treated as a deed of absolute sale. Relying on that clause the defendant while admitting the execution of the deed of mortgage claimed that the plaintiffs had lost the right of redemption and the defendant had become absolute owner of the suit schedule premises. He also pleaded that his possession after the expiry of the 10 year period was independent possession and therefore he had perfected his title by adverse possession by the time the suit was filed. On such pleadings, the trjal Court framed as many as seven issues including the additional issue. Issue No. 3 is the one which is relevant for the purpose of the question of law raised in this appeal and that is as follows :

(3.) Therefore, the stand taken in this Court is totally different from the stand which was taken before the lower appellate Court and tha trial Court. Having not pleaded suit mortgage, to be mortgage by conditional sale, it cannot now be urged at this stage that it should be treated as a question of out-right sale.