DAYABHAI JIVABHAI PATEL Vs. SHANA BANA PAGI

JUDGEMENT

(1.) This is a second appeal from the judgment of the District Judge of Nadiad. Under a deed dated September 15, 1906(exhibit 34) the properties in dispute were stated to be conveyed to Bai Parsan. That document shows that the consideration for the transfer was previous debts due to the ostensible purchaser. Under a deed dated April 15, 1941, the original plaintiffs purchased the property from Bai Parsan. The plaintiffs allege that they were put in possession of the suit fields on the date of sale by Bai Parsan with the consent of the defendant, who was then Bai Parsan's tenant and who was unwilling to continue as the plaintiffs tenant. It was alleged that in May, 1941, the defendant entered the said fields without any right and thus dispossessed the plaintiffs. The plaintiffs demanded possession, from the defendant but the defendant contended that the plaintiffs were not the owners but were mortgagees only. It was contended in the written statement that the transaction in favour of Bai Parsan was a mortgage and not a sale.

(2.) Two questions were thereupon raised: (1) Whether the transaction in favour of Bai Parsan was a mortgage. If so, the plaintiffs could not get a better title and must be treated as transferees from the mortgagee. The second question was one of law. It was argued that in 1906, when the sale-deed was executed in favour of Bai Parsan, Section 10A of the Dekkhan Agriculturists Belief Act had not been enacted. Therefore, the defendant was not entitled to lead evidence to show that the transaction was not a sale but was only a mortgage. On both these points the two Courts decided against the plaintiffs. The same two points have been raised before me in this second appeal.

(3.) On the first point there is little doubt. The parties to the original transaction being all dead no oral evidence was led. The Court considered the nature of the transaction, the assessment and the rent paid. It also dealt with the way in which the possession had remained after the deed. I see no adequate ground for disturbing the conclusion of the two lower Courts on this point. It was sought to be argued before me that the assessment stated to be of Rs. 22 was incorrect. I am unable to go into this question. This point was not raised in the lower Courts. It deals with the identity of the land in respect of which the assessment was made. The next point was as regards the value of the land in 1906. For that also there is no reason to disturb the conclusion of the lower Courts.