Sopan(Dead) Through His L.R. vs Syed Nabi

2. For the purpose of convenience and clarity the parties will be referred to in the same rank as assigned to them in the Civil Suit namely, the appellant herein would be referred to as the defendant, while the respondent herein would be referred to as the plaintiff.

3. The brief facts are that the plaintiff and the defendant were known to each other and due to such acquaintance, the plaintiff had 3 taken money from the defendant as and when such financial assistance was required. At a stage when the plaintiff received a sum of Rs.5,000/-, the same was construed as the consideration for the land owned by the plaintiff bearing Survey No.2/A measuring 6 acres 2 guntas and the defendant already being put in possession of the said property, a registered sale deed dated 10 th December, 1968 was executed in favour of the defendant. A separate agreement dated 10th December, 1968 was also entered into between the parties whereby the plaintiff had agreed to repay the said amount and secure reconveyance of the property. Another agreement was entered into on 29th August, 1969 between the parties under which the respondent-plaintiff agreed that he has taken Rs.5,000/- from the appellant-defendant and the possession of the land was given. In addition, respondent-plaintiff has received a sum of Rs.2,224/- without any interest, in all Rs.7,224/-. The respondent-plaintiff agreed if the amount is not repaid on “Velamavasya” the deed will be considered as sale deed. It is in that background the plaintiff claiming that he is prepared to repay the amount so as to secure back the property and, in that regard, construing the transaction as a mortgage, got issued a demand notice dated 10 th September, 1980 through his Advocate. The defendant got replied the said notice on 23rd September, 1980 and disputed the claim put forth by the 4 plaintiff. The plaintiff, therefore, filed the suit as stated above. The defendant entered appearance and filed the written statement disputing the claim. The trial court though had framed several issues, the entire consideration rested on the construction of the sale deed dated 10th December, 1968 and the contemporaneous documents, so as to consider whether the same amounts to a mortgage by conditional sale in the nature of contention put forth, or as to whether it is a sale transaction.

12. In that background, if the consideration as made by the courts below is taken note, we are of the opinion that the Civil Court and the High Court were not justified in their conclusion. On the other hand, the lower appellate court in Regular Civil Appeal No.233 of 1984 has taken into consideration the factual aspects in its correct perspective and keeping in view the legal position had allowed the appeal and dismissed the suit. Hence, we hereby set aside the judgment dated 26th September, 2007 passed by the High Court in S.A.No.479 of 1991 and restore the judgment dated 29 th June, 1990 passed by the Additional District Judge in Regular Civil Appeal No.233 of 1984.

13. Accordingly, the above appeal is allowed. Consequently, the Regular Civil Suit No.237 of 1980 filed by the plaintiff i.e. the respondent herein shall stand dismissed. However, we pass no order as to costs.