PAREKH HASMUKHRAY NAGARDAS Vs. ABEDABEN NOORKHAN

JUDGEMENT

(1.) The application (sic) is the original plaintiff of Civil Suit No. 90 of 1976 of the Court of Civil Judge (JD) Junagadh. The said suit was filed for arrears of rent and vacant possession of the rented premises. The rent note is at Exh. 43. Looking to it it is quite clear that there is relationship of landlord and tenant between the appellate-original plaintiff and the respondents who are three in number before the Trial court. Here also there are three respondents because in the cause title the name of respondent No. 2 has been deleted. Respondents No. 1 & 3 are served but they have chosen not to put in any appearance of an Advocate. In other words they are not present.

(2.) The defence taken amongst other contentions before the Trial Court was that the sale deed Exh. 42 dated 1-8-1967 was in the nature of money-lending transaction and as such the property never vested in the appellant-landlord and correspondingly therefore the defendants were never the tenants. In a face of a written documents and particularly Exh. 42 which is a registered document if any oral evidence is to be had Sections 91 & 92 of the Indian Evidence Act will have to be borne in mind alongwith which of course we have to consider Sections 93 & 94 of the said Act also. Apparently the respondents are relying on documents which are produced before the Trial Court at mark 60/17 and 60/18. I fail to understand how the documents which are not proved and exhibited could be referred to in the judgment to decide a controversy between the parties.

(3.) Incidently it may be mentioned that this document relates to the so-called agreement between the landlord and the tenants giving a right to the tenants to repurchase the property conveyed to him as per document Exh. 42. The moment there is a plea of money-lending transaction in the face of document Exh. 42 which is totally silent about the so-called right to purchase and for that of course when reliance is placed on documents which are not proved and exhibited one has to look to the provision of the Transfer of Property Act particularly with reference to mortgage by conditional sale. The relevant of provision in Section 58 cl. (c) of the Transfer of Property Act and this proviso clearly states that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale. Obviously. when Exh. 42 is silent about any such condition of resale there is no question of document Exh. 42 being in nature of a mortgage by conditional sale.