In terms of a sale deed executed and registered on 6th July, 1974 by Shri Raj Kishore an extent of 14 bighas and 15 biswas of the land aforementioned from out of survey number.
The First Appellate Court held that the prayer for amendment of the plaint to seek a decree for the transfer of the land in question in favour of the plaintiffs appellant was time barred and that the amendment would in any case alter the nature of the suit.
Aggrieved by the dismissal of the suit the plaintiff appealed to the District Judge, Vidisha, M.P. During the pendency of the said appeal the plaintiff filed an application for permission to amend the plaint to add an alternative prayer to the effect that in case the sale deed in favour of defendant number1 was held to be validly executed, the plaintiff be given a decree for specific performance by execution of a sale deed for the transfer of the suit property in his favour.
The plaintiffs case is that the transfer was only by way of security for the repayment of Rs.6,000/ which according to the plaintiff was taken only as a loan.
In so far as agreement marked Ex.
Aggrieved by the judgment aforementioned the plaintiffs appellants filed second appeal No.230 of 1995 before the High Court of Madhya Pradesh, Gwalior Bench.
D 2 relied upon by the defendant, the property was recorded jointly in the names of the plaintiff and defendant number2 in the revenue records for the year 1980 81.
436, 439/1 and 441 was transferred to the defendant respondent number1 for a sum of Rs.6,000/ only.
It was also agreed between the parties that defendant number1 shall number get the disputed land mutated in their name till 6th July, 1981, the date by which the plaintiff companyld repay the amount of loan and secure the return of their land.
Defendant respondent number1 companytested the suit by filing a written statement in which he denied the assertion that the sale deed in question was executed by way of security for repayment of any loan.
The High Court on that basis held that the finding of the Courts below that the property was number held jointly by the plaintiff and defendant number2 was perverse.
It was also alleged that the defendant was in possession of the land in question ever since the execution of the sale deed and that a mutation based on the sale deed had been attested in his favour.
The plaintiff asserted that they had approached defendant number1 several times to receive back the sum of Rs.6,000/ borrowed from him and to get the land in question transferred back to them, but the said defendant had refused to do the needful.
On the pleadings of the parties the Trial Court of Civil Judge First Class, Kurwai, District Vidisha, framed as many as eight issues for determination and recorded evidence adduced by the parties before it.
The plaintiffs further case is that return of the loan amount by the 6th July, 1981 would result in the land in question being transferred back to the plaintiff to which effect an agreement was also executed between the parties to the transaction on the 6th July, 1974 itself.
Defendant number1 further alleged that he had made improvements over the land and that a suit for declaration simplicitor was number maintainable as the plaintiff was out of the possession of the land in question.
A 1 and the rent numbere Ext.
D1 for retransfer of the land in question to the plaintiff was companycerned, the First Appellate Court held that while the execution of the agreement was proved there was numbermention in the same about the sale deed in question being by way of security for repayment of the loan.
The First Appellate Court observed It is clear from the above analysis that the alleged sale deed of Ex.
We have heard learned companynsel for the parties at length.
The present appeal assails the above judgment and order of the High Court as numbericed earlier.
The plaintiff in that backdrop prayed for a decree for declaration to the effect that the sale deed executed by him in favour of defendant number1 was void and ineffective and that he companytinued to be in cultivating possession of the land as owner thereof.
The dismissal of the application was on that ground upheld.
P 1 for which dispute has been raised and evidence adduced is actually a Sale deed.
D 1 for Security on the basis of this agreement is number proved and the Appellants Plaintiffs do number have eligibility of any relief from Defendant No.1 on the basis of this agreement.
This Sale deed was number written for the security of loan.
The Trial Court further held that defendant number1 had number forcibly occupied the land in question during the pendency of the suit as alleged by the plaintiff.
This application was allowed by the Trial Court but in revision the same was set aside and the amendment application directed to be companysidered along with the main appeal.
Similarly it is also clear that agreement of Ex.
The Trial Court eventually held that the sale deed in question was number executed as security for any loan as alleged by the plaintiff number was the execution of agreement dated 6th July, 1974 proved.
P 1 was written by the Defendant No.1 but writing of Sale deed Ex.
The plaintiff further alleged that companytrary to the agreement between the parties defendant number1 got a mutation regarding the land in question attested in his favour although he had numberright to do so in view of the specific stipulation companytained in the agreement between the parties forbidding any such mutation.
On the merits of the case the First Appellate Court held that there was numberstipulation in the sale deed that the land transferred thereby shall be retransferred to the Vendor by executing a sale deed in his favour.
Raj Kishore the plaintiff in the suit having passed away during the pendency of this appeal, his legal representatives were brought on record on 5th November 2008.
The High Court held that the dismissal of the application for amendment by the First Appellate Court on the ground that the prayer sought to be incorporated by the amendment was barred by limitation was number companyrect.
All the same the proposed amendment would make numbermaterial difference unless the plaintiff also pleaded that he was ready to perform his part of the companytract so as to entitle him to any relief based on the agreement executed between the parties.
B 1 were undoubtedly parts of the same transaction.
The appeal was accordingly allowed in part and defendant number1 restrained from interfering with the possession of the plaintiff till such time he obtained a decree for partition from the revenue companyrt companycerned.
This Court observed The sale deed the deed of reconveyance Ext.
D 1 and agreement Ex.
The plaintiff alleged that the possession of the land in question companytinued with him and defendant number2 as agreed.
Hence, the judgment and decree passed by the lower companyrt is number erroneous.
The First Appellate Court accordingly heard the appeal and the application for amendment together and by its judgment and order dated 19th July, 1995 dismissed both.
The facts necessary for disposal of this appeal may be briefly stated as under Late Shri Raj Kishore the predecessor in interest of the plaintiffs appellants herein owned jointly with his brother defendant respondent number2 Shri Jugal Kishore agricultural land situate in different survey numbers of village Morasa, Tehsil Kurwai in the State of Madhya Pradesh.
S. THAKUR, J. This appeal by special appeal arises out of a judgment and order dated 25th February, 2003, passed by the High Court of Madhya Pradesh at Jabalpur, Gwalior Bench, whereby Second Appeal No.230 of 1995 filed by the appellants plaintiffs was allowed but only in part and to the extent of granting a decree for injunction restraining the defendants respondents from interfering with the possession of the appellants over the suit property till such time the said property is partitioned between them through the companypetent Revenue Court companycerned.
