LAHU GARBAD SHINDE Vs. HUSNODDIN SHAIKH NAZIR

JUDGEMENT

(1.) SHRI Lahu Garbad Shinde-original plaintiff in Regular Suit No. 97 of 1977 on the file of the Civil Judge, Junior Division, Amalner has come in Second Appeal before this Court. The property in dispute between parties is an agricultural land bearing Survey No. 928/3-4a, admeasuring 1 acre 24 gunthas situated within the Municipal limits of Amalner. This property originally belonged to the appellant/plaintiff. In February 1965, he was in need of Rs. 3,500/- and therefore, he approached the respondent-original defendant who was doing money lending business. But he was not holding any money lending licence. Therefore, he suggestd the plaintiff to execute a Sale Deed in his favour in respect of the suit premises by way of security for loan of Rs. 3,500/ -. The said suggestion was accepted by the appellant-plaintiff. Accordingly on 5th February, 1965, two documents i. e. a document of sale at Exhibit 51 and an agreement for sale at Exhibit 48, took place between parties viz. present appellant and the original defendant Shaikh Nazir Shaikh Sardar. As per the original document, it was agreed that the plaintiff was to return the amount of Rs. 3,500/- on or before 31st March, 1968 and on payment of the said money, the original defendant was to execute the reconveyance deed in his favour. The appellant was not in a position to perform the said agreement in favour of the defendant, and therefore, he approached the defendant and got the time extended upto 31st May, 1969. However, he was not in a position to perform his part on or before 31st May, 1969, and therefore, he got the time extended till the end of year 1974. It is the claim of the appellant/plaintiff that at the time of Khopdi Ekadashi in the year 1974, he had approached the original defendant and offered the amount of Rs. 3,500/- and had requested him to return and reconvey the property in his favour but the original defendant avoided the same. Though the plaintiff had made several offers, the defendant did not accept those offers, and consequently, no reconveyance deed took place. Ultimately, he issued a notice to the defendant by R. P. A. D. dated 19th May, 1977. The said notice was also refused by the original defendant. Therefore, the plaintiff filed a suit. In the said suit, the plaintiff had alleged that the real transaction between the parties was that of a mortgage and that there should be a decree of redemption. At the same time he also made a prayer that the agreement dated 5th February, 1968 if treated as an agreement to reconvey the property then he was ready and willing to perform his part of contract and that a decree for specific performance be passed in his favour.

(2.) THE original defendant had contested the claim of the plaintiff by filing his written statement at Exhibit 17. He had denied the claim of the plaintiff that the real transaction between the parties was that of a mortgage. He also contended that the plaintiff was not ready and willing to perform his part of the contract. The plaintiff had never approached the defendant for getting the reconveyance within the stipulated time. He, therefore, sought dismissal of the plaintiffs suit with costs.

(3.) IN view of the rival pleadings of the parties, the trial Court framed the issues at Exhibit 15 and recorded the evidence of both sides. The trial Court had found that the real transaction between the parties was not of a mortgage and the agreement in question is - an agreement for reconveyance. The trial Court also found that the plaintiff was ready and willing to perform his part of the contract and that the plaintiff was entitled to get a decree for specific performance of agreement of reconveyance. The trial Court, therefore, decreed the suit in favour of the plaintiff.