RAJWATI DEVI Vs. PREM NANDANI SINHA

JUDGEMENT

(1.) The defendants have filed this first appeal against the judgment and decree dated 5 th October 1978 passed by the learned 2 nd Additional Subordinate Judge, Sitamarih in Title Suit No. 16 of 1976/ 79 of 1976 whereby the learned trial court decreed the plaintiffs' suit for redemption.

(2.) The plaintiffs respondents filed the aforesaid suit for redemption of the mortgage dated 8.8.1973 executed by the plaintiff No.1 in favour of defendant No.3 with respect to the suit property comprised within ward No.13 holding No.90 measuring 1 kattha 10 dhur. According to the plaintiffs grandfather of the plaintiffs namely Ambika Prasad was the owner of the property. After the death of Ambika Prasad the father of the plaintiff No.1 namely Sitaram inherited the property and on his death the plaintiff No.1 inherited.

(3.) The defendants filed the contesting written statement mainly contending that it was agreed between the parties that the form of the deed will be a Kebala Baimiyadi for a consideration of Rs. 10,445/- and accordingly, the sale deed was executed and the defendant No.3 was to be in possession of the same. The plaintiff was required to refund the said amount by 7.8.1975 and then the defendant would have re-conveyed the property and deliver vacant possession in favour of the plaintiffs. The plaintiff No.1 failed to refund the amount of Rs.10,445/- by 7.8.1975 as such he lost the right of re-conveyance. Entire consideration amount was paid to the plaintiffs and in fact the deed which is out and out sale was executed. The expenses incurred by the defendants i.e. stamp, registration fee and interest etc. were never included in the consideration amount. Since it was out and out sale there was no necessity to deposit the amount under Section 83 of the T.P. Act. The relief committee, was never in the suit premises nor the suit premises was ever vacated by relief committee rather defendant No.3 had been residing with his family in the suit house from 8.8.1973 i.e. the day of execution of the sale deed. He has spent Rs.4500/- in repairing the suit premises.