SHAIKH PAPAMIYA CHANDBHAI Vs. RUPCHAND NANA BHANE

JUDGEMENT

(1.) The present second appeal was admitted vide order dtd. 25/1/2007 on the following substantial question of law :-

(2.) The present appeal is preferred by original defendant no.1, who has suffered two concurrent decrees in a suit filed against him by respondent no.1 herein. The other respondents are family members of respondent no.1. Respondent no.1 is hereinafter referred to as "plaintiff" and appellant is referred to as "defendant no.1".

(3.) The plaintiff had filed a suit for redemption of mortgage with respect to the suit property, which is an agricultural land bearing Gut No.36/1 admeasuring 1.01 HR situated at village Hasanapur, Tq.Shrirampur, Dist.Ahmednagar. It is the case of the plaintiff that he had mortgaged the suit property with defendant no.1 in consideration of loan amount of Rs.7,000.00 vide document, being mortgage by conditional sale dtd. 23/11/1978. The said document is at Exhibit-45 in the record of the learned trial court. The plaintiff contends that in terms of the said document dtd. 23/11/1978, defendant no.1 was placed in possession of the suit property. He contends that in terms of the said document, the plaintiff was entitled to redeem the mortgage by making repayment of the loan amount of Rs.7,000.00 to defendant no.1 after a period of 8 years and before a period of 10 years from the date of execution of the document and upon such payment, defendant no.1 was bound to execute the deed of reconveyance with respect to the suit property in his favour and to deliver back possession of the suit property to him. The plaintiff contends that despite repeated requests, defendant no.1 avoided to reconvey the suit property, and therefore, the plaintiff had issued legal notice dtd. 30/11/1988. He further states that since the legal notice also did not yield the desired result, he was constrained to file the suit. The suit came to be registered as Regular Civil Suit No.335/1989.