JAGDEO SUDAME INGOLE Vs. RAMHARI GULABRAO THAKARE

JUDGEMENT

(1.) The un-successful defendant has filed this Appeal under Section 100 of Code of Civil Procedure challenging the judgment and decree dated 31.01.1991, delivered against him in Regular Civil Suit No. 175/1990 and further judgment and decree dated 21.11.1994 delivered in Regular Civil Appeal No.73/1991, upholding it. This Court has while admitting the Appeal on 22.02.1995 framed the question . as to limitation in filing the suit seeking declaration and possession.

(2.) The present respondents are original plaintiffs and they filed a suit for possession and declaration claiming relief of declaration that two sale deeds executed by them in favour of the present appellant are void ab initio and also sought decree of possession. The first sale deed is dated 17.02.1986 while the second sale deed is dated 23.05.1987. Suit has been filed on 06.03.1990. The plaintiffs also contended that sale deeds were infact money lending transactions and plaintiffs have offered the amount as agreed to defendant with request to re-convey the property in both the sale deeds, but the defendant refused and hence they issued legal notice on 28.12.1989 and thereafter filed the suit. The defendant [present appellant] by written statement denied the stand as taken and contended that it was not a money lending transaction. He further stated that plaintiffs never approached him to tender any amount. He also pointed out that the suit as filed was not within limitation. In its subsequent paragraphs, he had pointed out the consideration of the sale deeds as mentioned in those sale deeds and also his possession and cultivation. The present respondent no.1 who was the original plaintiff no.1 examined himself in support of his case and he also examined a witness from Bank to show that the property was mortgaged with Cooperative Society. The present appellant entered the witness box and was cross examined. Trial Court framed various issues and held that the sale deeds were infact loan transactions and nominal documents. The trial Court also held that when the respondents went to pay back the amount of Rs. 2000/- for reconveyance, the appellant demanded Rs. 15,000/-, the property was mortgaged with Cooperative Society and suit was within limitation. The suit therefore, came to be decreed. The present appellant then filed Regular Civil Appeal No. 73/1991, which came to be dismissed.

(3.) Advocate Shri Ghare, before beginning the arguments contended that the question whether the suit transactions were money lending transactions, also arises in this matter, and as the said question is not framed, he requested the Court to frame that question in addition to the question of limitation. The request has been opposed by Advocate Shri Sohoni, who states that concurrent finding delivered by both the Courts below is sought to be reopened and he argues that scrutiny of this aspect needs re-appreciation of entire evidence, which is not possible in Second Appeal.