RAJENDRA KUMAR Vs. SMT. GOMATI DEVI AND ANOTHER

JUDGEMENT

(1.) This first appeal has been filed by the appellant defendant being aggrieved by the judgment and decree dated 16.08.2001 passed by the Additional District Judge, Sabalgarh, District Morena, in Civil Suit No. 14-A/1991, whereby the suit for specific performance was decreed by the learned trial Court.

(2.) Brief facts leading to the present appeal are that the plaintiffs had filed a suit against the defendant for redemption of mortgage, declaration of title and in the alternative execution of document of conditional sale and for possession of part of the suit property and payment of arrears of rent. The husband of Plaintiff No. 1 was a Clerk in the Court. A counterclaim was filed by the defendant seeking possession from the plaintiffs and recovery of rent @ Rs. 100/- per month from August 1991.

(3.) It was the case of the plaintiffs that from the father of the defendant, they had purchased certain building material valued at Rs. 14,000/- and that money was claimed by the father of the defendant from the plaintiffs, but the plaintiffs were not having arrangement to pay that amount and in addition, they required additional some of Rs. 10,000/- for the marriage of their niece, therefore, the house was mortgaged by the plaintiffs in favour of the father of the defendant, but defendant Pyarelal refused to keep the house in mortgage and asked them for execution of the sale deed. A sale deed was executed and an agreement was executed separately with Rajendra Kumar that they shall pay the amount of loan within a period of three years with 2% monthly interest and in that event, the property shall be re-conveyed by execution of a sale deed in favour of the plaintiffs. The plaintiffs had executed a registered sale deed in favour of the defendant on 20.04.1987 after accepting a sum of Rs. 30,000/- from the defendant. Copy of such sale deed is Ex.D/1. It is the plaintiffs' case that on that very date, an agreement Ex.P/1 was executed for redemption of sale on payment of loan amount alongwith interest within three years and a symbolic possession of the property was handed over to the defendant. At the time of this execution of the sale deed, there were two tenants in the suit premises, namely, Heeralal and R.C. Mishra, who were paying monthly rent of Rs. 300/- per month. The defendant was authorized to accept this rent in lieu of interest. Plaintiffs maintained his possession on a portion of the property and the defendant started receiving rent @ Rs. 120/- per month from tenant Heeralal on the first floor and Rs. 180/-per month from R.C. Mishra for a portion of house on the ground floor. In 1988 since Heeralal was transferred, he had handed over possession of that portion in favour of the plaintiffs, whereas when the property was vacated by R.C. Mishra, then the defendant had rented it out to one ASI Lokendra Singh on rent @ Rs. 180/- per month. It was also averred that the defendant got his name entered in the Municipal records in an illegal manner, whereas the plaintiffs had not sold the house in favour of the defendant, but it was only mortgaged and they had no intention of selling the house. The agreement was to adjust interest amount against the rent amount and it was also averred that the rate of interest was abnormally high and arbitrary. It was submitted that the defendant was not entitled to recover interest @ more than 12%.