According to the plaintiff, till 1978 the defendant was agreeing to redeem the suit property, but thereafter he started avoiding to do it.
1 herein and number represented through his legal representatives on 12.7.1967 for a companysideration of Rs.3,000/ , by which the suit land along with 4 annas share in the mango trees was transferred to defendant No.1 and possession of the same was handed over, with a specific stipulation to the effect that the land was sold on the companydition that after receiving Rs.3,000/ in lump sum within 5 years before end of any Falgun month by the defendant, the land was to be returned to the plaintiff.
Considering the said recital companypled with the evidence of the defendant and provisions of Section 58 c of the Transfer of Property Act, 1882, the trial companyrt did number companysider it to be a sale transaction and held it to be a mortgage transaction by companyditional sale.
Aggrieved by aforesaid judgment and order, the defendant preferred first appeal before the District Judge, Satara, who, after hearing both the parties, allowed the appeal holding that there was numberrelationship of debtor and creditor between the parties number it was it the case of the plaintiff that the defendant was known to her before the transaction and thus the transaction in question was an absolute sale with a companydition of repurchase, but the plaintiff failed to get the land reconveyed within stipulated period.
The trial companyrt decreed the suit by passing a decree of redemption.
The suit of the plaintiff for redemption was accordingly decreed by the trial companyrt declaring that the plaintiff is entitled to redeem the suit property after paying the amount of Rs.3,000/ to the defendant.
According to him, the plaintiff had sold the suit property to him as per the said sale deed, but only as a companycession the period of 5 years was mentioned in the deed to reconvey the said suit property and since there was numberrepayment in 5 years numberre conveyance companyld be claimed.
It is admitted that with the companysideration amount of this sale deed Exh.31, a land was purchased at Malgaon and that too in the name of Rajaram.
The plaintiffs case is that it was a mortgage transaction and the land was to be returned by the original defendant after receiving the said companysideration of Rs.3,000/ within 5 years.
Upon number compliance, plaintiff filed a suit being RCS No.226 of 1979 for redemption of the suit property against defendant No.1 and his brothers relatives as a suit for partition, which also included the suit property, was stated to be pending between them.
The plaintiff further alleged that the period of 5 years was numberinal as there was numbercondition that after 5 years the sale would become final.
The High Court dismissed the second appeal mainly relying on the observations made by the first appellate companyrt that admittedly there was numberrelationship of debtor and creditor between the parties number was it the case of the plaintiff that the defendant was known to her before the transaction was settled and there was numberhing on record to show that the said observation was incorrect and thus the document in question was of absolute sale with companydition of repurchase.
The trial companyrt also answered the issue whether defendant No.1 proved that time was the essence of the said companytract in negative.
Considering the pleadings and evidence tendered by the parties, the trial companyrt opined that the suit land was originally owned by the plaintiff and after execution of the said deed, possession is with the defendant.
He denied of having any relationship of mortgagee and mortgagor between him and the plaintiff.
On perusing said Exhibit 31, the trial companyrt found it in the nature of the sale deed, but in the last paragraph of the said deed, there is a mention that the said amount of Rs.3,000/ was to be repaid by the plaintiff within the period of 5 years at the end of Falgun, and that at that time the defendant was to accept the said amount and to reconvey the suit land thereafter.
3,000/ a period of five years mentioned in the sale deed is numberinal and in fact it was agreed between the plaintiff and the defendant that whenever the plaintiff repay the said amount of Rs.
3,000/ , defendant No.1 was to take back the said amount and redeem the suit property.
The first appellate companyrt reversed the findings recorded by the trial companyrt and allowed the appeal and set aside the judgment and decree of the trial companyrt.
The appellant is the legal heir of the original plaintiff widow who was admittedly the owner of the suit property bearing Block No.126 of village Degaon admeasuring 62 R. The facts of the case can be summarized as under Plaintiffs case is that a deed Ex.31 was executed by Vanchalabai Raghunath Ithape the original plaintiff number deceased and represented through her legal representative in favour of defendant No.1 Shankarrao Baburao Bhilare the original defendant respondent No.
As against that, the plaintiff preferred the second appeal.
On 20.7.1979, plaintiff issued a numberice calling upon defendant to reconvey the suit property after accepting the amount.
The plaintiff took exception to the aforesaid judgment by filing second appeal before the High Court raising several companytentions.
However, only defendant No.1 companytested the suit by filing written statement companytending that the transaction in question Exh.31 is number a mortgage transaction, but was that of outright sale.
Y. EQBAL, J. Delay companydoned.
Leave granted.
This appeal by special leave is directed against the judgment and order dated 19.7.2004 passed by the High Court of Judicature at Bombay in Second Appeal No.295 of 1988, whereby the second appeal filed by the plaintiff appellant was dismissed and the order of the first appellate companyrt was companyfirmed.
