JUDGEMENT
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(1.)The original plaintiffs have preferred the Second appeal against dismissal of their suit by the learned district Judge, Sangli, by allowing Civil Appeal No.147 of 1986 filed by the original defendant No.1 wherein he had challenged the decree passed by the learned Civil judge, Junior Division, Islampur in favour of the plaintiffs in Civil Suit No.304 of 1980.
(2.)To state in brief, the defendant No.2 -Vilas tukaram Jadhav was the owner of land survey No.1002/2 admeasuring 81 Ares. To the eastern side of that land was the land Survey No.1003 admeasuring 58 Ares. Both the lands were consolidated and Gat No.2351 was formed with area of one hectare and 21 Ares. Out of this, western side 81 Ares land,which was bearing original survey No.102/2, was mortgaged by the defendant No.2 in favour of defendant No.1 on 30.1.1973 for a loan of rs.3,500/-. According to the plaintiffs, on 11.11.1974, the defendant No.1 agreed to sell half share from survey No.1002/2 in favour of the plaintiffs for consideration of rs.9,000/- and he received an amount of Rs.1300/- as earnest money. On 20.8.1975, the agreement for sale was revised and further amount of Rs.2850/-was received by the defendant No.2 from the plaintiff No.1. On 18.6.1977, the Assistant consolidation Officer gave a certificate that the said half portion from Survey No.1002/2 could be sold. On 1.10.1977, the defendant No.2 executed a registered sale deed in favour of the plaintiffs for consideration of Rs.12,000/-in respect of the joint half share in the land Survey No.1002/2. By the same document, he also transferred the right of redemption of the said property in favour of the plaintiffs. The plaintiffs, agreed to repay the mortgage money i. e. Rs.3,500/- to the defendant No.1 for getting the mortgage redeemed. That amount was adjusted in the consideration amount of rs.12,000/-. The plaintiffs contended that in view of the said sale-deed, they are owners of half share in the land and as per the said document, they are also entitled to redeem whole of the land. Therefore, they filed the suit for redemption of mortgage and also sought possession of the land.
(3.)The suit was contested by the defendant No.1 by written statement Exhibit 18. He raised several objections about the redemption of mortgage in view of the fact that land Survey No.1002/2 was already consolidated in Gat No.2351. He also denied that any agreement for sale had taken place between the plaintiff and defendant No.1 on 11.11.1974 and 20.8.1975. He also denied that defendant No.2 had executed any sale deed in favour of the plaintiffs in respect of half share in the land Survey No.1002/2 with right of redemption of mortgage. He also contended that on 15.6.1975, defendant No.2 had agreed to sell the said land to him for consideration of Rs.25,000/-. He had paid an advance amount of Rs.15,000/-to the defendant No.2. The mortgage money was also adjusted towards the price of the land and thus the mortgage has extinguished. According to him, on 3.12.1977, the defendant No.2 had sold the land Survey No.1002/2 to him under a registered sale-deed and thus, the defendant No.1 is the exclusive owner of the property and therefore the suit for redemption of mortgage and possession is not tenable and is liable to be dismissed.
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