SIYA RAM Vs. TULSA BAI

JUDGEMENT

(1.) This is plaintiffs' second appeal under Section 100 C.P.C. The appellants instituted Suit No. 423 of 1971 for specific performance of contract of re-conveyance. The said suit was decreed by the trial judge and the said decree has been reversed in Civil Appeal No. 232 of 1974 by the first appellate court.

(2.) House No. 177 situate in Mohalla Nai Basti, Jhansi is the subject matter of the suit. The said house admittedly belonged to the plaintiffs, as it their ancestral property. Their case is that they were in need of money and mortgaged the house with the defendant for a sum of Rs. 1000/-. But the defendant instead of getting the mortgage deed executed, got a sale-deed executed on 27th April, 1968. An agreement of repurchase on the same day was simultaneously executed separately by the defendant in their favour for return of the said property on a sum of Rs. 1000/- within a period of three years. The plaintiffs who were owners agreed to pay a sum of Rs. 20/- per month towards the interest as rent. The defendant having failed to execute a sale deed in pursuance of an agreement of repurchase dated 27th April, 1968, the suit was filed. In the written statement the allegations that the plaintiffs wanted to execute mortgage deed, were denied. It was pleaded that they have sold the house in question on 27th April, 1968 for a sum of Rs. 1000/-. An agreement for re-conveyance was admitted by her with the condition that therein it was agreed upon that if the plaintiffs fail to pay rent for a period of more than three months, the agreement of repurchase would be void.

(3.) The trial judge framed three issues on the basis of the pleadings of the parties. The parties led evidence in support of their respective cases. It is significant to mention here that neither the agreement dated 27th April, 1968 nor its copy was filed by the plaintiffs. They came out with the case that the agreement was in the custody of original plaintiff Gaya Prasad who died during the pendency of suit and it was not traceable.