RAJNIKANT CHHOTABHAI PATEL Vs. PATEL KANTIBHAI

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant No.1 against whom as well as against other defendants the respondent Nos.1 and 2 - original plaintiffs filed Regular Civil Suit No.250 of 1968 seeking possession of the suit property. The case of the plaintiff in his suit is that, uncle of the defendant No.1 named Patel Kalidash Desaibhai acting as his guardian illegally got sale deed executed on 2.3.1959 for consideration of Rs.2,500/ - in favour of the defendant No.1 and on the same day he had executed a cross agreement as guardian of the defendant No.1 as per which the suit property was to be reconveyed within 10 years after expiry of 5 years from the date of such deed by taking back Rs.2,500/ - from the plaintiffs. It is further case of the plaintiffs that the said document was contrary to the provisions of Fragmentation Act and, therefore, the defendant No.1 did not acquire any right in the suit property. The defendant No.1 is thus in illegal possession of the suit property. The plaintiffs are ready and willing to pay Rs.2,500/ - to the defendant No.1 and the defendant No.1 therefore is under obligation to give back the possession of the suit property to the plaintiffs. The plaintiffs have also put alternative plea in their suit that even if the Court believes that by the said document the defendant No.1 has become owner of the suit property then also since the cross agreement was entered into on the same date, such transaction could be said to be a transaction of mortgage and, therefore, the plaintiffs are entitled to redeem the mortgage and get back the possession by paying an amount of Rs.2,500/ - to the defendant No.1. The plaintiffs have setup one more alternative plea in the suit that if the transaction is not believed to be of mortgage then the plaintiffs be held entitled to get back the suit property by construing the transaction as agreement between the parties for reconveying the property to the plaintiffs. On such basis the plaintiffs made three prayers in the suit, one is the plaintiffs being owner of the suit property the defendant No.1 be directed to hand over the possession of the suit property to them, the second one is that if the Court finds that for any reason or circumstances it is not proper to grant such relief, then the transaction being in the nature of mortgage the Court may order for redemption of mortgage and direct the defendant Nos.1 and 2 to hand over possession of the suit property to the plaintiffs and the third one is that, if the Court still believes for any reason that the relief for redemption of mortgage is not appropriate to be granted to the plaintiffs, then as per the agreement made by the guardian of the defendant No.1 in favour of the plaintiffs, the Court may pass order for specific performance of the agreement and direct the defendant Nos.1 and 2 to hand over possession of the suit property to the plaintiffs.

(2.) The defendant No.1 resisted the suit by filing Written Statement at Ex.11 and stated that the plaintiffs and defendant Nos.2 and 3 are not heirs of deceased Fulabhai, who was original owner of the suit property and, therefore, the plaintiffs have no right to file such suit. It is denied by the defendant No.1 that the transaction was against the provisions of Fragmentation Act. The defendant No.1 has stated that the transaction was of the absolute sale in his favour. By virtue of said transaction he has become owner of the suit property. The defendant No.1 has denied that the transaction was in the nature of mortgage and, therefore, there was no question of redemption of the mortgage as claimed by the plaintiffs. The defendant No.1 has further denied that as per the agreement for reconveyance he is liable to reconvey or resale the suit property to the plaintiffs. It is further stated that even if there was any right of reconveyance, the same was personal right of deceased Fulabhai, and the plaintiffs are not entitled to reconvey the suit property. It is lastly stated that the defendant No.1 having paid full price of the suit property to deceased Fulabhai, the plaintiffs are not entitled to claim any right in respect of the suit property.

(3.) On the basis of pleadings the learned trial Judge framed issues at Ex.14 as under : -(1) Whether it is proved that the writing of sale deed dated 2.3.57 is in the nature of mortgage?