BACHUBEN MOGHAJI KANAJI Vs. CHAUDHARI JOITAJI KALAJI

JUDGEMENT

(1.) THE appellants have preferred this appeal u/s 100 of the Civil Procedure Code, 1908 challenging the judgment and decree dated 5-8-1978 passed by the learned Assistant Judge, Mehsana in Regular Civil Appeal No. 150 of 1976 whereby the judgment and decree dated 30-8-1976 rendered by the learned Civil Judge (J. D.), Kalol in Regular Civil Suit No. 78 of 1970 is confirmed.

(2.) THIS second appeal has been admitted on the following substantial question of law : "whether the document Exh. 43 on which the suit is based amounts to a transaction of mortgage by conditional sale ?"

(3.) THE plaintiff (since deceased) filed the suit for redemption of the suit property contending that he had mortgaged the suit property by conditional sale to the defendant (since deceased) for consideration of Rs. 1000/- for a period of five years and the possession thereof was handed over to the defendant and document Exh. 43 mortgage by conditional sale was executed on 10-11-1952. Therefore, the suit was filed for redemption of the suit property.