KASHIM RAJEBHAI SHAIKH Vs. JAINODDIN BABU JAMDAR

JUDGEMENT

(1.) The learned counsel for the Appellants informs that the appellant Nos. 1 and 2 had expired pending the appeal. However, the appellant Nos. 3 to 7 are their legal representatives and, therefore, appeal may proceed.

(2.) The appeal is filed by the original plaintiffs. They had filed Civil Suit No. 4 of 1983 under section 10A of the Dekkhan Agriculturists' Relief Act, 1879 for accounts. According to them, suit land gat No. 51 situated at Mathanhalli, Taluka: Akkalkot, District: Solapur was owned by them. Plaintiff Nos. 2 to 7 are the sons of the plaintiff No. 1. According to them, in 1968, they had taken loan of Rs. 7,000/- from the defendant/respondent. The defendant demanded interest at the rate of 12% p.a. on the amount of loan. The plaintiffs executed sale deed on 2nd July, 1968 in favour of the defendant in respect of suit land as security of loan. According to them, though the document was termed and styled as sale deed in fact, it was transaction of Usufructuary mortgage. According to them, the defendant was to apply the income of the land first towards the interest and then towards the principal amount and on the satisfaction of the loan amount, land was to be returned to the plaintiffs. Accordingly, they sought a decree directing defendant to submit account of the income as well as to deliver the possession of the suit land to the plaintiffs.

(3.) Defendant contested the suit. According to him, it was out and out sale and not mortgage transaction. It was further contended that the Dekkhan Agriculturists' Relief Act, 1879 was repealed by The Bombay Agricultural Debtors Relief Act, 1947 and, therefore, provisions of the Dekkhan Agriculturists' Relief Act, 1879 could not be applicable to the transaction in this suit. Therefore, suit under section 10A of that Act is not tenable under the law.