PARSHRAM TANAJI AHER Vs. DATTU KADU AHER

JUDGEMENT

(1.) Heard Mr. S. M. Gorwadkar, learned counsel for the Appellants and Mr. S. K. Shinde, learned counsel for the Respondents, at length.

(2.) By this Appeal under Section 100 of the Code of Civil Procedure, 1908, (for short C.P.C.), the original Defendants No.1A to 1H have challenged the judgment and decree dated 5101985 passed by the Learned Civil Judge Junior Division, Chandwad in Regular Civil Suit No.96 of 1975 as also the Judgment and Decree dated 1291988 passed by the Learned III Additional District Judge, Nashik in Civil Appeal No.46 of 1986. By these orders, the courts below decreed the suit instituted by Respondent No.1 Plaintiff for specific performance of contract dated 30 121968. The parties shall, herein after be referred as per their status in the trial court. The facts and circumstances, giving rise to the filing of the present Second Appeal briefly stated, are as under:

(3.) Respondent No.1 (original Plaintiff) instituted the suit initially for redemption of mortgage. The controversy in this Appeal is in respect of land which previously was bearing CTS No.96/5 measuring 32 Gunthas assessed at Rs.1.69 ps. and subsequently merged in the lands of Appellants (Defendants No.1A to 1H) and formed block No.294 which together measures at 1 Acre and 37 gunthas (for short 'suit land'). It was the case of the Plaintiff that on 2181968 (exhibit 46) he had mortgaged the suit land to defendant No.2 i.e. Pundalik. The document was however styled as a sale deed and consideration of Rs.2000/ was shown. It is the case of the Plaintiff that he had received Rs.1500/. The said document was executed by way of security for repayment of the loan. The Plaintiff needed Rs.1000/ more, so he demanded Rs.1000/ from Defendant No.2. Defendant No.2 did not have that much amount and on the contrary he demanded Rs.1500/ paid to the Plaintiff under Exhibit 46. The Plaintiff approached Defendant No.1, since deceased who paid Rs.2500/ and document dated 30-12-1968 Exhibit 45 was executed. Though this document was styled as sale deed, the said document was executed by way of security only. Under that document possession was delivered to Defendant No.1. At that time Defendant No.1 agreed to execute a separate document about reconveyance of the suit land to the Plaintiff. Accordingly Defendant No.1 executed a receipt on 30-12-1968 (exhibit 40). The Plaintiff issued notice on 14-11-1975 to Defendant No.1 for redemption of mortgage. It was alleged that defendant No.1 had executed a receipt on 30-12-1968 and agreed to sell the suit land to the Plaintiff upon paying Rs.2500/. Defendant No.1 gave reply on 2121975. On 8-12-1975 the Plaintiff instituted the suit for redemption of mortgage. It was alleged by him that the sale deed dated 30-12-1968 was in fact a mortgage with conditional sale. It was further alleged that the document even though styled as a sale deed, in reality, it was agreed between the parties that the Defendant No.1 would take agricultural produce in lieu of interest and after return of Rs.2500/, would convey the suit land to the Plaintiff.