HARGOVIND SINGH Vs. DAYARAM

JUDGEMENT

(1.) THIS appeal by defendant no. 1 is directed against the judgment and decree dated 25/7/2008 in Civil Appeal No. 4 -A/2007 confirming the judgment and decree dated 29/9/2006 in Civil Suit No. 10 -A/2005.

(2.) PLAINTIFF is a 75 years old and an illiterate person. He claims to have title and in possession of the suit house admeasuring 828 sqft. situated in Ward No. 3 village Gohad, District Bhind. In order to meet expenses of his son's marriage, plaintiff had mortgaged the suit house on 27/6/1994 with the defendant no. 1 for Rs. 8,000/ -, however, plaintiff continued to be in possession thereof. Agreement had bore a condition that the mortgaged suit house shall remain the property of plaintiff. The plaintiff shall pay interest at the rate of 3% per month and alongwith interest the principal amount shall be paid within three years i.e. upto 27/7/1997 and the property shall be redeemed. In the event of failure of full payment of amount advanced, defendant no. 1 was set at liberty to recover the amount alongwith interest by instituting appropriate proceedings. Plaintiff was prepared to pay whole loan amount advanced and offered the same on 14/1/1997, but the same was avoided by defendant no. 1 under one or other pretext. Plaintiff sent a notice on 3/7/1999 for redemption showing his willingness and readiness for redeeming the suit house, the same having yielded no result, he filed a suit before the Civil Judge, Class -II, Gohad, District Bhind under Section 83 of the Transfer of Property Act, which was registered as civil suit No. 7/1999, however, the same was dismissed on 21/12/1999 with liberty to the plaintiff to file a suit for redemption of the suit property. Accordingly, plaintiff filed the instant suit inter alia contending that the suit house is of plaintiff's ownership and possession. Plaintiff has never entered into any agreement to sale with the defendants nor has plaintiff ever executed any sale deed in favour of defendants and, therefore, sought a declaration that the suit property be redeemed on payment of advanced amount.

(3.) ON aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. The trial court framed the following issues: -