RAJENDRA PRASAD Vs. BISHWANATH PRASAD SINGH

JUDGEMENT

(1.) THIS appeal at the instance of the plaintiffs -appellant is directed against the impugned judgment and decree dated 18.7.1988 and 25.7.1988 respectively passed in Title Appeal No. 26 of 1987 by Shri Jugal Kishore Prasad, 6th Additional District Judge, Palamau at Dal -tonganj whereby and whereunder the judgment and decree dated 27.6.1987 and 8.7.1987 respectively passed in Title Suit No. 11 of 1986 by Munsif, Daltonganj. Palamau were affirmed and the said appeal was dismissed.

(2.) THE plaintiffs -appellant had filed Title Suit No. 11 of 1986 for declaration that the transaction dated 24.6.1977 though ostensibly expressed in the shape of a deed of sale was really a transaction of usufructuary mortgage which has made clear in the deed of agreement executed by the defendant -respondent on the same date simultaneously in favour of the plaintiffs -appellant and for a further declaration that the said transaction of the usufructuary mortgage dated 26.6.1977 stands redeemed under Section 12 of the Money Lenders Act. The plaintiffs -appellant has further sought for direction to the defendant -respondent to give vacant possession of the suit land to the plaintiffs -appellant failing which the plaintiffs -appellant be put back in possession of the suit land through the process of the Court.

(3.) THE case of the defendant -respondent, inter alia, is that the plaintiffs -appellant had sold the suit land by executing a registered sale deed dated 24.6.1977 to the defendant -respondent for consideration of Rs. 3,000/ - and he came in possession over the same and got himself mutated in respect thereof and the said sale deed is out and out a sale deed and the defendant -respondent has acquired indefeasible right, title and interest therein. It is alleged that there was never a talk of advancement of loan between them and he has never agreed to advance loan to the plaintiffs -appellant and he had never agreed to lend money to them on the condition that the plaintiffs -appellant shall execute a deed of sale which shall be treated as usufructuary mortgage transaction. It is also alleged that the deed of agreement which was executed by him on the date of the sale deed as executed by misrepresentation giving an option to the plaintiffs -appellant to obtain re -coveyance of the suit land for the same amount of Rs. 3,000/ - if the plaintiffs -appellant wanted to do so within a year and the contents of the deed of agreement as never read over and explained to him. It is also alleged that it is hard to believe that he would have agreed to recite the expression Baibulbafa in the agreement knowing well that he has obtained absolute sale deed and the recitals in the agreement are fraudulent and meant to have wrongful gain to the plaintiffs -appellant. The further case of the defendant -respondent is that the sale deed executed by the plaintiffs -appellant is not a mortgage and Section 12 of the Bihar Money Lenders Act, 1974 has no application in this case and the only course open to the plaintiffs -appellant was to obtain a decree for specific performance of contract in accordance with law within the statutory period which the plaintiffs -appellant did not take and the proceeding under Section 83 of the Transfer of Property Act is not maintainable in view of the fact that the transaction is out and out a sale and not an ostensible sale.