SANJAY KUMAR PANDEY Vs. RAJDEO YADAV

JUDGEMENT

(1.) Heard Mr. Jitendra Kishore Verma, learned counsel representing the appellants, assisted by Mr. Lal Babu Singh, and Mr. J. S. Arora, learned senior counsel assisted by Mr. Ratan Kumar Sinha, learned counsel for the respondents.

(2.) This Second Appeal has been filed against the judgment and decree dtd. 2/5/2009, passed in Title Appeal No. 82 of 1991 by the learned Second Additional District and Sessions Judge, West Champaran, Bettiah, whereby the lower appellate court reversed the judgment and decree dtd. 19/7/1991, rendered in Title Suit No. 80 of 1985 by the learned First Additional Munsif, Bettiah, in which the suit filed by the plaintiff-appellants was partially decreed.

(3.) In order to gauge the matter in its correct perspective, it is necessary to briefly restate what the suit entails. The plaintiffs-appellants filed Title Suit No. 80 of 1985 for declaring the registered mortgage by conditional sale dtd. 15/4/1980 to be a mortgage and further sought a direction commanding defendant/ respondent no. 1 to accept the mortgage amount of Rs.4,000.00 within a fixed time frame, execute a deed of re- conveyance (wapsinama) and deliver possession of the mortgaged property to the plaintiffs, failing which the plaintiffs prayed for execution of the re-conveyance deed through the process of the Court upon deposit of the mortgage amount. During the pendency of the suit, defendant/ respondent no. 5, who is the brother of defendant/ respondent no. 2, executed sale deeds dtd. 22/6/1981 (Ext. A and A/1) in favour of defendant/ respondent nos. 3 and 4, who are brothers of defendant/ respondent no. 1, thereby transferring half of the suit property along with certain other pieces of land. Thereafter, the plaintiffs amended the plaint to challenge the said sale deeds as illegal, fraudulent, inoperative, and not binding upon them. The plaintiffs contended that the land, in-question, was allotted to defendant/ respondent no. 2 during the partition, who subsequently mortgaged the same in favour of defendant/ respondent no. 1 to secure a loan of Rs.4,000.00. Accordingly, defendant/ respondent no. 2 executed a registered mortgage by conditional sale dtd. 15/4/1980 in respect of the property described in the plaint. The mortgage deed specifically stipulated that upon repayment or receipt of the mortgage loan amount of Rs.4,000.00, the mortgagee would execute a sale deed in favour of the mortgagor and hand over possession of the land in question to defendant/respondent no. 2. The mortgage deed clearly specified that upon repayment or receipt of the mortgage loan amount of Rs.4,000.00, the mortgagee would execute a sale deed in favour of the mortgagor and hand over possession of the land, in question, to defendant /respondent no. 2.