RAMESHWAR PRASAD Vs. BHUSHAN PRASAD

JUDGEMENT

(1.) This civil revision by the Defendant No. 2 is directed against an order by which the Court below has allowed amendment of the plaint.

(2.) The Plaintiffs-opposite party have filed Title Suit No. 182 of 1981 seeking a declaration that the deed (registered) dated 7.8.76 executed by the Plaintiffs in favour of the Defendants is deed of simple mortgage and not a deed of out and out sale. Their case, shortly stated, is that they had taken loan of Rs. 5,200/- from Defendants and executed deed of simple mortgage on 14.4.70. As they could not return the money, they approached the Defendants for further loan and agreed to execute a deed of 'bai-bul-bafa'. The Defendants agreed on the condition that the Plaintiffs should return the entire money by 28.12.81 in which case the Defendants would return the deed. The Plaintiffs agreed and executed the deed of simple mortgage on 7.8.76 with respect to the suit property. According to the Plaintiffs, although the deed was executed for sum of Rs. 22,500/- they had, in fact, taken Rs. 9,250/- only in cash, the rest amount, i.e. Rs. 13,250/- was added as interest on the amount advanced upto 28.12.82. According to the Plaintiffs' case further, the Defendant never came in possession over the property except a shop-cum-room on rent of Rs. 480/- per annum for which the Defendants executed a separate deed on 1.1.77 in favour of the Plaintiffs. The suit was filed as the Defendants refused to receive the money and return the document to the Plaintiffs.

(3.) The case of the Defendant Petitioner, shortly stated, is that the Plaintiffs took Rs. 22,500/- and executed a deed of out and out sale with a stipulation that the vendees, i.e. the concerned Defendants will execute a deed of re-conveyance if the Plaintiffs fail to pay off the said consideration money of Rs. 22,500/- by 28.12.81. After execution of the deed Defendant Nos. 1 and 2 came in exclusive possession over the property. While the portion (the shop) came in possession of Defendant No. 1 and his son, the 'jenani' (inner) portion of the property was given to the Plaintiffs on rent.