MD YAKUB ANSARI Vs. MD YASIN ANSARI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 30.8.1987/14.9.1987 passed by the learned third Subordinate Judge, Palamau at Daltonganj, in Title Suit No. 36 of 1985. By the impugned judgment and decree, the suit filed by the appellant was dismissed, but without cost.

(2.) THE case of the plaintiff -appellant is that in the year 1968, he fell in need of an amount of Rs. 4,000.00 (rupees four thousand) in connection with his business. Therefore, he approached the defendant -respondent for loan of that amount on the security of about 9.3 acres of land belonging to him, situate at the village Munkeri. However, the defendant -respondent gave out that as he was not a money -lender having money lending licence, he could not advance him the loan on the basis of a mortgage deed. He, however, offered to purchase the said land with an agreement to re -convey the same on an express assurance that the transaction would be treated usufructuary mortgage. Having been so assured by the defendant -respondent, the plaintiff -appellant executed a registered sale -deed respecting the said lands which are mentioned in Schedule -A to the plaint (hereinafter to be referred to as the suit lands) in favour of the defendant respondent on 16.11.1968 being the deed No. 9722 of the even date. Accordingly, the defendant -respondent also executed a registered agreement in favour of the appellant undertaking to re -convey the suit lands to him. As the transaction was intended to be a usufructuary mortgage, he put the defendant -respondent in possession of the suit lands after receiving the entire consideration money. The latter remained in possession for about seven years. However, he took possession of the suit lands in December, 75 in view of the fact that by virtue of the provisions of Sec. 12 of the Bihar Money Lenders Act, 1974, the usufructuary mortgage stood redeemed on the expiry of a period of seven years of the cultivating possession of the defendant respondent. The latter did not object to his taking possession of the suit lands. However, after about four years, he started disturbing and disputing his possession over the suit lands on the instigation of one Abdul Rahman Ansari who happened to be the own uncle of the plaintiff -appellant and full brother of one Usman Ansari whose son is married to the daughter of the defendant -respondent. Consequently, the dispute was referred to private panchayat who after hearing both the parties, made an award - in favour of the plaintiff -appellant holding that the transaction of the year 1968 was actually a usufructuary mortgage and not sale, as evidenced by the sale -deed executed by the plaintiff -appellant and agreement of re -conveyance executed by the defendant respondent. Since the defendant -respondent failed to abide by the award of the punches and instead tried to dispossess him from the suit lands on 29.9.1980 with the help of some musalemen, a suit was filed before the Munsif, Palamau at Daltonganj. However, subsequently, the value of the suit was fixed at Rs. 1,00,000.00 (rupees one lakh) for the purposes of the jurisdiction and the Court fee. The plaint was taken back and presented before the Subordinate Judge with the relief of declaration that the sale -deed No. 9722. dated 16.11.1968 executed by the defendant in favour of the plaintiff was due to fraudulent inducement of the defendant -respondent and the same was really a usufructuary mortgage deed and the mortgage stood redeemed on account of the possession by the respondent till November, 1975. The plaintiff -appellant sought further relief ,in the Court below of a declaration that the suit land continued to be his occupancy raiyati lands and that the defendant -respondent has no right, title and possession over the same.

(3.) THE defendant -respondent appeared and contested the suit by filing his written statement contending inter alia, that whatever the plaintiff appellant has asserted in the plaint is not correct. As a matter of fact, the plaintiff -appellant approached him with an offer to sell the suit lands and on negotiation, the price was fixed at Rs.