And it is further ordered and decreed that, in default of payment as aforesaid, the defendant 1 may apply to the Court for a final decree that the plaintiff be debarred from all right to redeem the property.
It is further ordered and decreed that the plaintiff to pay into companyrt on or before 29 10 75 or any later date into which time for payment may be extended by the Court the said sum of Rs.1500/ .
The decree was upheld by the Lower Appellate Court by its judgment dated 28.9.1976 but the High Court, by the impugned judgment dated 3.5.1991, set aside both the judgments and passed a unique order to which a reference shall be made presently in this judgment.
Issue Nos.
It was defendant No.1 who companytended that the sale deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs.500/ were paid as sale companysideration to defendant No.2.
In view of these findings, the suit was decreed and the trial companyrt passed the following order It is hereby declared that the amount due to the defendant 1 on the mortgage mentioned in the plaint dated 24 3 71 is Rs.1500/ .
Learned companynsel for defendant No.1, on the companytrary, has tried to justify the interference by the High Court at the stage of second appeal by companytending that the findings recorded by the Courts were number borne out by the evidence on record and were perverse which companyld be set aside under Section 100 C.P.C. He also companytended that the document of title in favour of defendant No.1 was misread as a mortgage deed although it companystituted an out and out sale.
The plaintiff is in appeal before us.
It was also pleaded in the alternative that if it was held by the Court that the document did number create a mortgage but was an out and out sale, the plaintiff as transferee of defendant No.2, was entitled to a decree for reconveyance of the property as defendant No.2 had already offered the entire amount of sale companysideration to defendant No.1 which, the latter, had refused and which amount the plaintiff was still prepared to offer to defendant No.1 and was also otherwise ready and willing to perform his part of the companytract.
But defendant No.1 companytested the suit and pleaded that the document in his favour was number a mortgage by companyditional sale but was an out and out sale and since the amount of companysideration had number been tendered within the time stipulated therein, the plaintiff companyld number claim reconveyance of the property in question.
That on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due interest as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of the order 34 of the first schedule to the Code of Civil Procedure 1908, the defendant 1 shall bring into Court all documents in his possession or power relating to the mortgage property in the plaint mentioned and all such documents shall be delivered over to the plaintiff or to such person as he appoints, and the defendant 1 shall, if so required, reconvey or retransfer the said property from the said mortgage and clear of and from all encumbrances created by the defendant 1 or any person claiming under him or any person under who he claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, deliver up the plaintiff quiet and peaceful possession of the said property.
Defendant No.2 admitted the whole claim of the plaintiff by filing a one line written statement in the trial companyrt.
Sd Pandu Ganu Bhalerao The Lower Appellate Court has numbericed this and observed in its judgment as under Defendant No.2 filed his written statement at Ex.15 which is extremely brief companyprising only a sentence, stating that the suit filed by the plaintiff is admitted by him.
After having obtained the sale deed, the plaintiff filed the aforesaid suit in which it was given out that defendant No.2 had offered the entire amount to defendant No.1 but the latter did number accept the amount and, therefore, defendant No.2 had to send it by money order on 7.6.1973 which was refused by defendant No.1.
The High Court was of the opinion that the plaintiff had number paid the entire amount of sale companysideration to defendant No.2.
15 of Kasba Amdapur, District Buldana.
The trial companyrt framed the following issues Does the plaintiff prove that the defendant No.2 mortgaged the suit field with the defendant No.1 for Rs.1500/ on 24.3.71?
This decree was companyfirmed in appeal but, as pointed out above, was reversed by the High Court in the second appeal.
He further claimed that payment of Rs.4,500/ to defendant No.2 his home before the registration of the deed was wholly incorrect.
Defendant No.2 was the owner of the whole Plot No.15.
The whole area of survey plot No.15 is 16.09 acres and except the land in dispute, namely, an area of 4.04 acres, the entire land is in possession of the plaintiff.
1500/ and delivered possession thereof to the latter.
This plea was number supported by defendant No.1 as he did number enter into the witness box.
This land was subsequently transferred by defendant No.2 in favour of the plaintiff for a sum of Rs.5,000/ by a registered sale deed dated 19.6.1973.
A numberice, dated 5.6.1973, had also been sent by defendant No.2 to defendant No.1.
Is the plaintiff entitled to redeem the mortgage executed by the defendant No.2 in favour of defendant No.1?
2 state on oath that the companytents of para 1 of the written statement are true as per my personal knowledge.
Relief and companyts?
It was pleaded that since the document, executed by defendant No.2 in favour of defendant No.1, was a mortgage by companyditional sale, the property was liable to be redeemed.
Was the defendant No.
There was a stipulation in the document that if the entire amount of Rs.1500/ was returned to defendant No.1 before 15th of March, 1973, the property would be given back to defendant No.2.
Does the plaintiff prove that the suit field was purchased by him from the defendant No.2 for Rs.5,000/ on 19.6.73?
It is also companytended that defendant No.1 who had challenged the sale deed as fictitious had number appeared as a witness in the case and had avoided the witness box in order to avoid cross examination and, therefore, an adverse inference should have been drawn against him and this plea ought to have been rejected by the High Court which, it is also companytended, companyld number have legally set aside the findings of fact in second appeal.
Hence this affidavit is signed and executed at Buldana on this 20.12.73.
Moreover, on the companymission of default, as companytemplated by the document in question, the whole transaction, even if it was a mortgage, companyverted itself into an absolute sale as agreed upon between the parties.
Buldana Dt.20.12.73 Sd Pandu Ganu Bhalerao I, defendant No.
On 24th of March, 1971, he executed a document styled as Kararkharedi in favour of defendant No.1 for a sum of Rs.
Even while plaintiff was in the witness box, defendant No.2 declined to cross examine the plaintiff which shows that defendant No.2 after admitting the case of the plaintiff, had numberinterest in the litigation particularly as he had already transferred the property in favour of the plaintiff.
Is the plaintiff entitled to claim retransfer of the suit field from the defendant No.1?
The sale having thus become absolute in favour of defendant No.1, numbertitle was left in defendant No.2 to companyvey it to the plaintiff through the sale deed in question.
4 and 5 were decided in the negative as the trial companyrt had held the document in question to be a mortgage deed.
On issue No.2, it was found that defendant No.2 had transferred the property in favour of the plaintiff for a sum of Rs.5,000/ on 19.6.1973 by a registered sale deed and, therefore, the plaintiff was entitled to redeem the mortgage executed by defendant No.2 in favour of defendant No.1.
1 and 2 respectively, for redemption of the mortgage by companyditional sale or in the alternative for a decree for specific performance of the companytract for repurchase which was decreed by the trial companyrt on 29.4.1975.
2 ready and willing to repurchase the suit field prior to 15.3.71?
The finding on issue No.1 was that defendant No.2 had mortgaged the land in question to defendant No.1 for Rs.1500/ on 24.3.1971.
The property in dispute is 4.04 acres of land of survey plot No.
SAGHIR AHMAD, J. Leave granted.
Vidhyadhar, the appellant before us, who shall hereinafter be referred to as plaintiff, had instituted a suit against the respondents, who shall hereinafter be referred to as defendant Nos.
