LALIT KUMAR SAHU Vs. SAJJAN KUMAR AGRAWAL

JUDGEMENT

(1.) This second appeal preferred by the defendant / appellant herein was admitted by formulating the following substantial question of law:

(2.) The suit property bearing Khasra No.276/1, area 0.045 hectares (4,785 sq.ft.) situated at Village Pithora, Patwari Halka No.22, Revenue Inspector Circle Pithora, Tahsil and District Mahasamund, was purchased by the plaintiff for a cash consideration of Rs. 48,000/- on 4-3-1997. It is the case of the plaintiff that he is the owner, title holder and possession holder of the suit land and the defendant has started constructing over the suit land and as such, decree for possession be granted for removing / dismantling the construction so made by the defendant by declaring his title and also the defendant be restrained from interfering with his possession in which the defendant set up the plea that the said transaction was mortgage by conditional sale and / or the sale is condition of purchase which was entered into between the plaintiff and the defendant vide Ex.D-1 in which it was agreed that the defendant will pay Rs. 83,000/- on or before 13th April, 1997, then the plaintiff will execute sale deed in favour of the defendant, as such, the transaction is mortgage by conditional sale, therefore, the plaintiff is not entitled for decree for declaration of title, permanent injunction and possession.

(3.) The trial Court after appreciating oral and documentary evidence available on record decreed the suit holding that execution of sale deed by the defendant in favour of the plaintiff has been proved, it is an outright sale and the defendant has failed to prove Ex.D-1 i.e. agreement to sale alleged to be executed by the plaintiff in favour of the defendant. On appeal being preferred by the defendant, though the first appellate Court partly recorded finding in favour of the defendant that the defendant has also proved agreement Ex.D-1 in respect of the suit land in favour of the plaintiff, but held that it would not change the result of suit and dismissed the appeal against which this second appeal has been preferred by the defendant in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment for the sake of completeness.