VIRENDRA KUMAR Vs. DAKBAR DAS

JUDGEMENT

(1.) This Second Appeal arises out of appellate judgment and decree dtd. 07/02/2003 passed by the 2nd Additional District Judge, (FTC) Bemetara, District - Durg in Civil Appeal No.40A/2002 arising out of judgment and decree dtd. 22/01/1983 passed by the Additional Civil Judge, Class II, Bemetara in Civil Suit No.36A/1980 by which, the learned lower Appellate Court has affirmed the judgment and decree of the Trial Court dismissing suit of the plaintiff. This is plaintiff's appeal.

(2.) The appellant / plaintiff filed a suit seeking declaration of title, recovery of possession and permanent injunction against defendants on the pleadings inter alia that the plaintiffs had purchased land admeasuring 3.06 acres situated in khasra no.47 and land admeasuring 4.60 acres situated in khasra no.52/1 in village - Mahantpur for a consideration of Rs.1,000.00 from the defendant - Dakbar Das vide sale deed dtd. 18/03/1966, which was duly registered and the defendant and the plaintiff, after obtaining possession, were cultivating the land. Plaintiff's case was that later on, defendant No.1, in order to deprive the plaintiff of his title, which he had acquired by virtue of sale deed, executed deed of transfer in favour of his own mother / defendant No.2 - Kadam Bai and later on, the property was recorded in the name of Kadam Bai in revenue records and then Kadam Bai sold it to third person Madhubandas vide registered sale deed. The plaintiff having come to know of such transaction, filed an appeal before the Sub-Divisional Officer. Later on, on 20/01/1971, the defendants sought to dispossess the plaintiff and a dispute arose leading to filing of suit.

(3.) The case of the defendants, in the written statement filed by defendants 1 and 2, it was pleaded that there was no intention of selling the property in dispute. According to these defendants, plaintiff's father was engaged in lending money as money lender. In the written statement, it was pleaded that though the sale deed was executed, there was a separate oral agreement between the parties that after the loan amount is repaid, the plaintiff would execute reconveyance deed in favour of defendant No.1. According to defendants 1 and 2, there was no out and out sale as claimed by the plaintiff but the true nature of transaction was that of mortgage and that the deed (Ex.P/1) was a mortgage deed as intended by the parties. Defendant No.3, the purchaser filed a separate written statement claiming the owner of the property on the basis of registered sale deed executed in his favour in respect of part of the disputed property.