KRISHNALAL SANTARAM MENDRU Vs. SAKHARAM DAGADU ZAMBRE

JUDGEMENT

(1.) Appellant (Original Defendant) impugns judgment and decree dtd. 3/5/2017 passed by learned District Judge-7, Ahmednagar in Regular Civil Appeal No. 459 of 2014, thereby upholding judgment and decree dtd. 4/10/2014, passed by Civil Judge, Junior Division, Rahuri in Regular Civil Suit bearing No. 392 of 2006.

(2.) Respondent/Original Plaintiff instituted RCS No. 392 of 2006 seeking relief of redemption of mortgage in respect of land bearing Block No. 789, ad-measuring 1 H 21 R, situated at village Devlali Pravara, Tq. Rahuri, District Ahmednagar. Plaintiff contends that suit land is his ancestral property. He was in need of money for his domestic difficulties, therefore, he approached defendant to advance amount of Rs.3,500.00 and executed registered document dtd. 4/5/1970, in form of mortgage by conditional sale. Period of mortgage was 12 years against mortgaged amount of Rs.3,500.00. Possession was handed over to defendant. Defendant had agreed that plaintiff can redeem mortgaged property by making re-payment of mortgage money of Rs.3,500.00 within 12 years. After expiry of 12 years, plaintiff offered amount of Rs.3,500.00 to defendant but he avoided to receive the same. Lastly, plaintiff issued legal notice on 16/8/2006 to defendant calling upon him to receive mortgage amount and to execute redemption of mortgage. However, on 31/8/2006 defendant gave false reply and refused to redeem mortgage and to hand over possession of suit property.

(3.) Defendant refuted plaintiff's claim contending that plaintiff proposed him to sell suit land with condition of re-purchase. Accordingly, he purchased suit land for a consideration of Rs.3,500.00 under registered document of sale, with condition of re-purchase. In difference to said document, he was put into possession. Plaintiff failed to re-purchase suit land from defendant by making payment of Rs.3,500.00 within 12 years. Eventually, sale became absolute. Plaintiff's claim that transaction was mortgage by conditional sale is false. Plaintiff or anybody from his family never offered repayment of amount within stipulated period. Suit is filed beyond period of limitation. According to defendant, he gave reply to plaintiff's notice dtd. 16/8/2006. Inadvertently, he used word mortgage in his reply, although, transaction was of sale with condition of re-purchase.