QUDA MIR Vs. MOMA BHAT

JUDGEMENT

(1.) THIS is a defendants appeal in a suit for possession filed by the plaintiffs. According to the plaintiffs three transactions were entered into between the plaintiffs and the defendants which took the outward form of a sale but in fact were mortgages. One was a deed dated 9th Chet 2001 (Bikrami) in respect of 8 kanals and 5 marlas which had for its consideration a sum of Rs. 150. Another transaction was dated 10th Baisakh 1998 in respect of 4 kanals and 2 1/2 marlas having for its consideration Rs. 100, and the third was dated 9th Poh, 1997 (B) in respect of 4 kanals with a consideration of Rs. 260. The plaintiffs claimed to be the owners of the land or at least the owners of the possessory rights in the land and filed a suit for possession by redeeming the mortgages executed by them.

(2.) THE suit was resisted by the defendants mainly on the ground that the plaintiffs had sold these lands to the appellants and therefore the question of recovering possession did not arise. According to the defendants the transactions evidenced by the three deeds amounted to an out and out sale with a condition of re -purchase and therefore the plaintiffs had no right to recover possession.

(3.) THE trial court decreed the plaintiffs suit and held that he had the right to recover possession, as the transactions were mortgages. The learned appellate court affirmed the decision of the trial court but on different grounds Hence this second appeal.