ISMAIL NATHABHAI KHATRI Vs. MULJIBHAI SHANKERBHAI BRAHMABHATT

JUDGEMENT

(1.) Whether the questioned document constitutes a mortgage by conditional sale or sale out-right is the main question which has surfaced in this Second Appeal under Sec. 100 of the Civil Procedure Code ("Code" for short).

(2.) A few material facts leading to the rise of the present Second Appeal, may be stated, at this stage. The appellant herein is the original defendant and the respondent herein is the original plaintiff. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' for the sake of convenience and brevity.

(3.) The plaintiff instituted Regular Civil Suit No. 10 of 1970 for redemption of the mortgaged property admeasuring 29 gunthas being a part of S. No. 174, situated in the sim of village Achhalia, Taluka Jhagadia, which is hereinafter referred to as the 'suit land'. According to the case of the plaintiff, he entered into a registered document dated 5-4-1948 in respect of the suit land, which was in the nature of a mortgage by conditional sale. The plaintiff had transferred the suit land in the name of the defendant by registered mortgage by conditional sale, on 5-4-1948, for Rs. 451.00 and the defendant was given the possession of the suit land as mortgages. The plaintiff had filed the above suit for redemption of the suit property and to recover the mesne profit as the defendant did not comply with the notice served by the plaintiff.