VALA PUNA Vs. PUNJA MAVJI

JUDGEMENT

(1.) This is a civil revision application against an order passed by the learned Extra Assistant Judge Mehsana sitting at Amreli by which order the learned Extra Assistant Judge set aside an order passed by the learned Civil Judge Jr. Dn. Amreli by which order the learned Civil Judge had dismissed an application made by a debtor under sec. 4 of the Bombay Agricultural Debtors Relief Act 1947 holding against the debtor that the transaction which was the subject-matter of the applica- tion was not in the nature of a mortgage.

(2.) The facts leading to this revision application are this way. The original applicant-debtors (Punja Mavji) case was that he had passed a conditional sale of his land S.No. 11 admeasuring 20 bighas and 3 vasas for a sum of Rs. 500.00 on 11th November 1929 in favour of Vala Puna and Nanji Narshi who were original opponents Nos. 1 and 2. The applicants allegation was that the real nature of this transaction was that of a mortgage and that these respondents had passed an agreement to reconvey the said land within 3 years of the date of the transaction on repayment of the moneys advanced. The possession of the land however continued with the appli- cant. The applicant further alleged that the two respondents did not accept the loan money when offered and recovered possession forcibly from him. After presenting this application it came to light that the land in dispute was partly divided between the respondent No. 2 and his brother one Parbat Narshi. Consequently an application was made by the applicant to join Parbat Narshi as the third respondent. The three respondents then filed a written statement in which they took up the contention that they had not purchased survey No. 11 from the applicant at all but that they had purchased it along with another plot from one Jivraj Khoda and that there was no agreement to treat the transaction as a mortgage. They also denied that the applicant had come to pay money and that they had refused to accept and that they had taken possession from the applicant by force. After this written statement was filed the applicant asked for leave to join Jivraj Khoda. Jivraj Khoda was joined as opponent No. 4 on 30th October 1952. Jivraj Khoda in his written statement contended that the applicant had given to him S. No. 11 as well as S No. 67 by a conditional sale for Rs. 400.00 on Chaitra Sud 2 S.Y. 1983 (April 4 1927 and that at his (the applicants) instance both these survey numbers were later conveyed by him (Jivraj Khoda) to Vala Puna and Nanji Narshi opponents Nos. 1 and 2 by a sale deed Ex 74 for Rs. 500.00 in S. Y. 1984 (December 6 1927 He further alleged that the transaction of sale (Ex. 74) entered into with these two opponents was in the nature of a mortgage and that the opponents (Nos. 1 and 2) had agreed (Ex. 50) on the same day i. e. December 6 1927 to reconvey the lands within 5years on repayment of their money; that thereafter S. No. 67 was re-sold to Jivraj Khoda for Rs. 500.00 and S. No. 11 only remained with opponents Vala Puna and Nanji Narshi. After this written statement of Jivraj Khoda was filed the applicant gave an application for amendment of his original application. by which the transaction which was alleged to be one in the nature of a mortgage was substituted to be one of conditional sale for Rs. 800.00 dated 6th December 1927 instead of the one for Rs. 500.00 dated 11th November 1929 as stated earlier. After hearing of the preliminary issues the learned Civil Judge came to the conclusion that the sale by the applicant first to Jivraj Khoda as well as the sale by Jivraj Khoda to the opponents Vala Puna and Nanji Narshi ware both absolute sales and not transactions in the nature of a mortgage as alleged by the applicant. Under the circumstances the learned Civil Judge dismissed the application of the debtor-applicant.

(3.) Against this order of dismissal the applicant-debtor preferred an appeal to the learned Extra Assistant Judge Mehsana who held that the said first transaction between the applicant Punja Mavji and Jivraj Khoda dated 4th April 1927 was in the nature of a mortgage. The learned Extra Assistant Judge further held that the said second transaction of sale between Jivraj Khoda and the opponents Vala Puna and Nanji Narshi dated 6 December 1927 was also in the nature of a mortgage. The learned Extra Assistant Judge also held that the said conveyance by Jivraj Khoda to Vala Puna and Nanji Narshi was at the instance of the applicant Puna Mavji. As the learned Extra Assistant Judge came to the conclusion that these transactions were in the nature of a mortgage he passed an order remanding the case to the trial Court for taking accounts of the mortgage transaction of 6th December 1927 and to pass the requisite award for S. No. 11 in favour of the applicant and proper orders for the delivery of the possession of S. No. 11. It is against this order of the learned Extra Assistant Judge that the present revision application is filed.