PATEL HASANBHAI ALIBHAI AADAMBHAI Vs. PATEL JAYESHKUMAR ISHWARBHAI

JUDGEMENT

(1.) This Second Appeal is preferred under Sec. 100 of the Code of Civil Procedure 1908 ("the Code" for short) challenging the judgment and decree dtd. 6/8/2005 passed by the learned Presiding Officer, Fast Track Court No.8, Bharuch in Regular Civil Appeal No.17 of 1998 whereby the learned first Appellate Court reversed the judgment and decree dtd. 31/12/1997 passed by learned Civil Judge (Junior Division), Jambusar in Regular Civil Suit No.103 of 1989 and the decreed the suit in favour of the plaintiffs directing them to deposit Rs.14610.00 being the mortgage money and directed the defendant No.1 to hand over peaceful possession of the suit premises to the plaintiffs by executing the sale deed thereof.

(2.) The facts, in nutshall, borne out from the impugned judgment are that the the shop bearing City Survey No.2581/A admeasuring 456 square meters paiki situated on the ground floor of the plaintiffs' premises in Kava Bhagol area of Jambusar ("the suit premises" for short) was mortgaged to defendants through conditional sale deed dtd. 24/9/1979 with the conditions stipulated therein that on completion of 7 years, possession shall be handed over back to the plaintiffs on receiving sale consideration of Rs.13,000.00and also the sale deed will be executed in favour of the plaintiffs.

(3.) The plaintiffs, on completion of 7 years, were ready and willing to pay Rs.13,000.00 to the defendants. However, the defendants denied to accept the said amount and further denied to reconvey the suit premises to the plaintiffs so also the possession. The plaintiffs, thus, filed the suit for redumption of mortgage and also prayed to direct the defendants to execute the sale deed and to hand over peaceful possession of the suit premises. The defendants, having been served, came out with a defence that the defendant No.2 has relinquished his share from the suit premises and as such, the defendant No.1 has become absloute owner. It is further contended that the sale deed executed on 24/9/1979 is absolute sale in favour of the defendant No.1 who was initially tenant at monthly rent of Rs.300.00 and in addition thereto, it is also contended that the defendant No.2 has paid Rs.25,000.00to the plaintiffs but failed to get any document / receipt thereof. The limitation was also pleaded as one of the defence so also the defence of jurisdiction. The learned trial Court, permitting the parties to lead the evidence, after framing the issues, was pleased to dismiss the suit of the plaintiffs.