BHIMRAO MAHADU SOLUNKE Vs. DHONDIBA SIDRAM SOLUNKE

JUDGEMENT

(1.) This appeal arises out of judgment rendered by learned Additional District Judge, Nilanga in an appeal (R.C.A.No.13/1999), whereby judgment and decree of trial Court in suit for redemption of mortgage has been confirmed.

(2.) For sake of convenience, the parties may be referred by their first names. Appellant Bhimrao is original defendant. Deceased Respondent Dhondiba was original plaintiff. A suit (R.C.S.No.525/86) was laid by deceased Dhondiba for redemption of mortgage by reconveyance of suit land. Agricultural land bearing S.No.91/C, admeasuring 5 acres 9 gunthas (suit land) was owned and possessed by deceased Dhondiba. His case before the trial Court was that due to indebtedness, he needed money and hence, requested Bhimrao to lend an amount of Rs.4,000/-. Thereupon, Bhimrao agreed to give advance of Rs.4,000/- on condition that the suit land shall be mortgaged by way of security for redemption of the loan. They agreed that if the loan amount would be repaid within a period of three years then the suit land would be reconveyed by Bhimrao in favour of Dhondiba. There was no intention to alienate the suit land. Thus, a document styled as "Mudat Kharedikhat" (conditional sale deed) dated 9.6.1975 was brought about by them. Though, requested for release of the mortgage yet, Bhimrao did not pay any heed. So, deceased Dhondiba filed proceedings under provisions of the Maharashtra Debtors Relief Act. He was directed to seek remedy in civil Court. Hence, the suit.

(3.) By his written statement (Exh.16) Bhimrao resisted the suit. He denied all the material averments made by deceased - Dhondiba. He contended that the transaction was that of out and out sale. He asserted that it was a conditional sale with concession given to Dhondiba to repurchase the suit land within three years. He asserted that the sale became absolute after the period of 3 years inasmuch as Dhondiba did not seek reconveyance within the stipulated period. He denied that the transaction was not intended to be a sale. He further submitted that the competent authority under the Maharashtra Debtors Relief Act rendered decision against the deceased - Dhondiba and, therefore, it cannot be said that there was relationship of creditor and debtor between them. He further asserted that the decision of the competent authority under provisions of the Maharashtra Debtors Relief Act would amount to res-judicata. He contended that suit claim is untenable and Dhondiba was estopped from seeking any relief. Hence, he sought dismissal of the suit.