R.BANUMATHI,J. - (1.) The present appeal arises out of the judgment of the High Court of Judicature of Madhya Pradesh, Jabalpur: Bench at Gwalior in Second Appeal No.374 of 1998 dated 22.06.2005, confirming the findings of the Courts below that the Sale Deed executed in favour of the appellants-defendants was only a mortgage as a security for repayment of the loan taken by the 1st respondent-plaintiff.
(2.) It is not necessary for us to refer to the pleadings of the 1st respondent-plaintiff and the appellants-defendants as they are referred in detail in the judgments of the Courts below.
(3.) Challenging the concurrent findings of the Courts below, the learned counsel for the appellants-defendants Mr. Puneet Jain submitted that whenever a conveyance of the property by a Sale Deed is accompanied by a separate document, it has to be taken as re-conveyance and it was not a mortgage and the Courts below erred in holding that the Sale Deed dated 14.06.1972 in favour of the appellants-defendants was a security for the loan taken by the 1st respondent-plaintiff. Learned counsel further submitted that the Sale Deed was accompanied by an Agreement Exhibit P/1 dated 14.06.1972 under which the 1st respondent-plaintiff had agreed to pay an amount of Rs.5000/- by 14.06.1973, which the 1st respondent-plaintiff did not comply with, and subsequent Agreement Exhibit P/2 dated 05.06.1974 was executed under which the 1st respondent-plaintiff paid an amount of Rs.6700/-; and after a lapse of about 17 years, the 1st respondent-plaintiff filed the suit for declaration that the Sale Deed was null and void. It was further submitted that in the absence of a prayer for cancellation of the Sale Deed dated 14.06.1972, the suit filed by the 1st respondent-plaintiff ought to have been dismissed, more so, when the suit was filed nearly after a gap of 17 years from the date of execution of the Sale Deed i.e 14.06.1972. In support of his contention, learned counsel placed reliance on a number of judgments of this Court reported as Bishwanath Prasad Singh v. Rajendra Prasad and Anr. - (2006) 4 SCC 432, Raj Kishore (Dead) by LRs. v. Prem Singh and Ors. - (2011) 1 SCC 657 and Gauri Shankar Prasad and Ors. v. Brahma Nand Singh - (2008) 8 SCC 287.;