HIRABAI ANNAPPA HALSAWADE Vs. BABGONDA MHADGONDA PATIL

JUDGEMENT

(1.) Heard Mr.Ingale for the Appellants. R.C.S.No. 44/1994 was filed by Babgonda Mhadgonda Patil and Vilas Mhadgonda Patil in the Court of learned C.J.J.D. Ichalkaranji for redemption of mortgage. It was the case of the Plaintiffs that the Plaintiff No.1 had transferred the suit property to Defendant No.1 by executing a Mortgage By Conditional Sale on 15.7.1966 for a sum of Rs.1300/- and within 10 years the mortgage was to be redeemed. It was the case of the Defendants that the transaction in question was not a mortgage but was an out and out sale. The Trial Court decreed the suit by its Judgment and Decree dated 29.7.2008 by recording a finding that the said document dated 15.7.1966, which was marked as Exhibit 80, was a Mortgage By Conditional Sale and not an out and out Sale Deed. This finding is recorded after extracting the contents of the document in paragraph 28 and the finding regarding the nature of document is recorded in paragraph nos. 29 and 30 of the Judgment of the Trial Court.

(2.) Aggrieved by the said decree of redemption, Civil Appeal No.41 of 2008 was filed in the Court of learned District Judge-I Ichalkaranji. During the pendency of the Appeal, Application Exhibit 34 was filed for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for producing on record a document purported to have been executed by Babgonda Patil in favour of the original Defendant No.1 Hirabai Halsawade on 11.6.1975. The learned District Judge-I Ichalkaranji dismissed the Appeal by the impugned Judgment and Order dated 24.7.2010 and in paragraph 20 of the said Judgment, the District Judge has given reasons for not entertaining Application Exhibit 34.

(3.) By order dated 17.6.2011 passed in this Appeal, the learned Advocate of the Appellants was directed to place on record copy of the Application Exhibit 34 and the document dated 11.7.1975 which have accordingly been placed on record. Though Application Exhibit 34 was not allowed, despite this, for considering whether any purpose would be served by considering the said Application Exhibit 34; copy of the Agreement which was sought to be produced with said Application Exhibit 34 was perused. A perusal thereof shows that original Plaintiffs-Babgonda Patil and Vilas Patil are shown as promissors and original mortgagee Hirabai is shown as promisee. However, said document is purportedly signed only by Vilas Patil.