RAMESH KUMAR Vs. SURENDRA KUMAR

JUDGEMENT

(1.) This second appeal was admitted on 28/2/2013 on the following substantial questions of law:-

(2.) This appeal has been filed by the appellants/plaintiffs being aggrieved with the reversal of decree. The trial Court (Second Civil Judge Class-I, Sagar) vide judgment and decree dtd. 20/9/1993 in Civil Suit No.14-A/1993 has passed a decree in favour of the appellants/plaintiffs in respect of the suit property situated at House No.392/362, area 91.25 sq.ft. in Mohan Nagar Ward, Sagar to get the same free from mortgage as per suit. Since the suit of the plaintiffs was decreed the defendants preferred an appeal and the first appellate Court in Civil Appeal No.31-A/1998 vide impugned judgment and decree dtd. 27/9/1998 allowed the appeal of the defendants and dismissed the suit of the plaintiffs.

(3.) Learned counsel for the appellants/plaintiffs at the time of arguments has placed reliance on the decision of Hon'ble Supreme Court in the case of Indira Kaur Vs. Sheo Lal Kapoor, MPWN 249 Note 180, in which, it has been held that under Sec. 58-C of the Transfer of Property Act, 1882 the sale with agreement of reconveyance for the same amount and period fixed for reconveyance is long and if there is no mutation by purchaser, such transaction is of mortgage. It is also held that as per Sec. 48 of Contract Act for the agreement for sale of immovable property, the time is not essence of contract. Regarding Sec. 16(c ) of the Specific Relief Act, 1963 it has been held that plaintiff not showing having purchase money with him, then no adverse inference can be drawn if not asked to show the same.