MIYA DARIAVKHAN NATHUBHAI Vs. OZA SHANKARLAL SHAMBHUDAS
LAWS(GJH)-1979-11-9
HIGH COURT OF GUJARAT
Decided on November 14,1979

MIYA DARIAVKHAN NATHUBHAI Appellant
VERSUS
OZA SHANKARLAL SHAMBHUDAS Respondents

JUDGEMENT

S.B.MAJMUDAR - (1.) The original plaintiff whose suit for redemption of alleged mortgage of an agricultural land came to be dismissed in appeal by the learned Assistant Judge Mehsana has approached this Court by way of the present second appeal.
(2.) A few facts leading to this proceeding may be stated at this juncture
(3.) The plaintiff appellant alleges that by way of a mortgage by conditional sale the agricultural land bearing No. 1060 admeasuring 2 acres and 28 Gunthas situated on the outskirts of village Chhatiarda in Mehsana Taluka of Mehsana District was continued in possession of the respondent who were the original mortgagees in possession thereof. According to the plaintiff originally the suit land was mortgaged with possession on 8th May 1947 by a registered document Exh. 49 for Rs. 500.00 with original mortgagee who was one Shambhuhai Parsottam The property belonged to Bai Ma Bibi widow of Bakarkhan Bismillakhan whose heir is the present appellant. After the execution of the aforesaid mortgage with possession the suit property was allegedly sold by the plaintiff by a registered document Exh. 36 on 4th August 1951 for a total amount of Rs. 1 0 whereby the mortgage in possession was allegedly made owner thereof. The plaintiffs contention is that even though the document Exh. 36 purports to be one of an out and out sale in substance it was one of mortgage in favour of the existing mortgagee in possession. The plaintiffs further case is that in 1964 precisely 17th March 1964 the parties recognized that the original transaction of 4th August 1951 was really one of mortgage and not an out and out sale and consequently an endorsement was made below the sale deed Exh. 36 by the mortgagee to the effect that the document will have to be treated as mortgage by conditional sale and a separate registered document exh. 28 was executed by the plaintiff in favour of the defendant pertaining to the same agricultural land by which the plaintiff entered into a transaction of mortgage by conditional sale for an amount of Rs. 2 0 According to the plaintiff. the consideration of Rs. 2 0 took care of the earlier amount of Rs. 1 0 which was covered by the document Exh. 36 and the additional Rs 1 0 were paid in cash by the mortgagee to the plaintiff and thereafter the mortgagee in possession remained in possession of the suit land pursuant to the document Exh. 29 which was a mortgage by conditional sale. Under the same document Exh. 29 the plaintiff was permitted to redeem the mortgage after six years of the date of the execution of the document by repaying Rs. 2 0 to the mortgagee. The plaintiffs contention is that inspite of the expiry of the requisite period of non redemption and inspite of repeated requests of the plaintiff to the defendants to reconvey the property after the redemption of mortgage the defendants were in no mood to comply with the said request and hence he filed Regular Civil No. 190 of 1970 in the Court of the learned Civil Judge Senior Division Mehsana for redemption of the suit mortgage on the basis of the document Exh. 29 and in the alternative it was prayed by the plaintiff that if the Court came to the conclusion that the document in question evidences a transaction of sale with condition of repurchase the plaintiff was entitled to repurchase the property on payment of Rs. 2 0 from the defendants. Thus a decree for redemption or in the alternative a decree for specific performance of the condition of the repurchase embodied in the document Exh. 29 was prayed for in the plaint by the plaintiff.;


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