DAYA SHANKER Vs. UMESH CHANDRA

JUDGEMENT

(1.) Heard learned counsel for the appellant at the admission stage. This is defendant's second appeal arising out of O.S. No. 374 of 2006, which was filed on 11.12-2006 for specific performance of an agreement for sale dated 28.4.2005. The suit was dismissed on 6.5.2010 by III Additional Civil Judge (S.D.)/ Additional C.J.M., Etawah. Against the said decree plaintiff filed Civil Appeal No. 27 of 2010, which was allowed by the A.D.J. Court No. 6, Etawah on 4.1.2012, judgment and decree passed by the trial Court was set aside and suit of the plaintiff was decreed for specific performance of the agreement for sale (reconveyance) on payment of Rs. 1 lac as balance sale consideration.

(2.) The property in dispute is 8/35 part of agricultural land comprised in Plot No. 508, area 1.412 hectares (3.49 acres). Initially plaintiff was bhoomihdhar of the land in dispute. He sold the same to the defendant on 28.4.2005. Copy of the sale-deed dated 28.4.2005 is Annexure-I to the affidavit filed in support of the stay application in this second appeal. Condition of reconveyance is mentioned in the sale-deed itself. It was mentioned that the conditional sale-deed was being executed and in case seller returned the amount of Rs. 1 lac, the purchaser would execute back the sale-deed of the property in favour of the same. In fact it was mortgage by conditional sale in accordance with 1929 Amendment to Section 58 of Transfer of Property Act. The lower appellate Court in this regard has discussed several authorities including some authorities of the Supreme Court.

(3.) The trial Court had held that under Section 155 of U.P.Z.A. & L.R. Act mortgage was prohibited and under Section 164 of the Act, it is mentioned that any transfer by which possession is transferred to the transferee for the purposes of securing any payment of money shall be deemed to be a sale. If the provisions of U.P.Z.A. & L.R. Act are to prevail upon Transfer of Property Act, then the result would be that the deed in question would be treated to be an out and out-sale and not conditional mortgage. In such contingency also plaintiff was entitled to specific performance of agreement for re-conveyance, which was mentioned in the sale-deed itself.