1 S.A. 230/2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 230/2005 Dhondiba s/o Bhujanga Basvante deceased through L. Rs. Bhujanga s/o Dhondiba Basvante and others Appellants (Orig. Plaintiffs) Versus Deorao s/o Sheshrao More and others ...Respondents. (Orig. Defendants) Mr. S.S. Kazi, Advocate for the applicants. Mr. Shivkumar K. Mathpati h/f Mr. Satish Talekar, Advocate for respondent Nos. 4 to 7, 8A, 8B, 9, 10/1 to 10/6 and 11. CORAM : A.V. NIRGUDE, J. DATED : 14th Sept., 2011. PER COURT :- 1. At the time of admitting the appeal, following questions were framed as substantial question of law. I. Whether the Courts below were right in holding that the decision in earlier suit i.e. R.C.S. No. 581 of 1986 would operate as estoppal for claiming relief in this suit in view of Order II Rule 2 of C.P.C. and Section 115 of Evidence Act and more specifically when the decision rendered in the suit is the subject matter of challenge in the second appeal bearing No. 99 of 1993, which is admitted and pending in this Court ? II. Whether the plaintiffs are entitled for redemption of mortgage, which is entered into by his mother in the year 1343 fasli and whether Sheshrao More could be termed a person, who has stepped into the shoes of mortgagee ? III) What is the scope and applicability of provision of Section 92 of the Transfer of Property Act, 1882 in reference to facts of instant 2 S.A. 230/2005 appeal ? 2. The appellants who are plaintiffs in the trial Court are challenging the concurrent findings of the Courts below that they could not prove that their purchaser Dhondiba had executed deed of mortgage in favour of Sheshrao Deorao More in 1934. The case of the appellants / plaintiffs in short can be stated as under. Land Survey No. 40 from village Panshevdi Tq. Kandhar District Nanded was owned by Dhondiba the father of the appellants / plaintiffs. In 1927 when Dhondiba was minor, his mother mortgaged suit property to one Mahadev buva for sum of Rs.500/-. Thereafter, Mahadeo buva the mortgagee insisted that he should be repaid the amount of loan. He therefore, filed a suit for recovery of Rs.500/- against Dhondiba and his mother. Dhondiba was still minor then. The mother on his behalf settled the dispute in compromise and agreed to pay the decreetal amount which was then Rs.900/-. It is the case of the appellants/plaintiffs that at that time one Sheshrao More the father of respondent No. 1 came forward and offered a loan of Rs. 1,000/- to Dhondiba’s mother. Dhondiba’s mother accepting the offer, utilised the amount of loan to repay decreetal amount of Rs.900/- and took Rs.100/- in cash. The appellants/plaintiffs asserted that this transaction was a mortgage though the registered document executed at that time shows that it was an out and out sale. They further asserted that in 1934, Dhondiba was still a minor and despite of this, Sheshrao the mortgagee fraudulently obtained the document of sale showing the age of Dhondiba as 25 years. However, the appellants / plaintiffs did not seek declaration that the sale deed was null and void on account of fraud etc.. They insisted that they are 3 S.A. 230/2005 entitled to redeem the suit property by repaying the amount of loan. The Courts below however, did not accept their case that the intention of the parties in 1934 was to create a mortgage and not transfer of property permanently by way of sale. It was indeed very difficult for the appellants / plaintiffs to prove this factual aspect of the case because the incident in question had occurred in 1934 whereas the suit was filed in 1993. No witness came forward to state as to what had happened between Dhondiba’s mother on one side and Sheshrao on the other. The appellants’ counsel tried to take advantage of an admission given by one of the respondents in the written statement. Some respondents who are related to Sheshrao More, filed written statement stating that the transaction was of mortgage and not sale. However, it clearly appears that they are out to favour the appellants / plaintiffs and cause loss to the contesting respondents / defendants No. 7, 10 and 11 who are at present in possession of the suit property as purchasers. Some of them purchased the suit property in part from Sheshrao More. Therefore, they are interested in claiming that Sheshrao became owner because of the document of 1934. The document of 1934 has come on record and with the consent of advocates appearing for the parties I read it in evidence. This document clearly mentions that it was a sale deed. In view of this, the appellants / plaintiffs are unable to prove that the transaction was mortgage. 3. In view of this discussion, it is clear that the appellants / plaintiffs failed to get answers to questions No.2 and 3 in their favour. As regards question No.1, there is practically no dispute between the parties that the other suit would operate as estoppel for claiming relief 4 S.A. 230/2005 in this suit. The earlier suit was filed in respect of some other property. Incidentally, the second appeal No. 99/1993 arising from that suit is decided along with this case by delivering an independent judgment. Thus, the appeal should fail. ORDER The appeal is dismissed. [A.V. NIRGUDE,J.] ts k/2011/Sept7/sa230.05ok