- (1.) THIS appeal under section 100 of the Code of Civil Procedure is at the instance of the original defendant against whom the respondent-original plaintiff filed Regular Civil Suit No. 223 of 1983 praying for redemption of mortgage and for handing over possession of the suit property to the plaintiff and also for ordering mesne profit @ Rs.400.00 per month till the possession of the suit property is handed over to the plaintiff.
(2.) CASE of the plaintiff is that the suit property was belonging to the father of the plaintiff and after the death of the father of the plaintiff, the plaintiff has become owner of the suit property by succession. It is the further case of the plaintiff that the father of the plaintiff mortgaged the suit property with father of defendant, named Rasulbhai by executing deed of conditional sale on 11.3.1958 for an amount of Rs.1,500.00. As per the condition provided in the deed, after expiry of seven years, on father of the plaintiff or his heirs paying Rs.1500.00 to the father of the defendant, he would re-convey the suit property. Plaintiff has further averred that the father of the defendant has passed away and the defendant is in possession of the suit property under the said deed of conditional sale. It is further averred that the property was since mortgage continued to remain under mortgage with the defendant with the above said condition of getting the property released from mortgage and the defendant is under obligation to release the said property from mortgage on receiving the mortgage amount. The plaintiff has further averred that the plaintiff has time and again requested the defendant to accept the amount and release the mortgaged property in favour of the plaintiff but the defendant did not release the suit property and, therefore, plaintiff served Registered Post Notice dated 24.8.83 with demand draft for an amount of Rs.1500.00 asking the defendant to release the suit property from mortgage. However, the defendant still not released the mortgage property and, therefore, the suit is filed. The defendant resisted the suit denying the transaction of mortgage. The defendant stated that it was absolute sale in favour of the father of the defendant. It is stated that after the father of the defendant expired, the suit property was inherited by his widow and thereafter, it has come to the share of the defendant and thus, the defendant has become owner of the suit property. It is further stated that the father of the plaintiff had first executed agreement to sell dated 28.2.58 and thereafter conditional sale was executed on 11.3.58 and as per the condition of sale, the plaintiff was required to pay Rs.1500.00 within seven years for re-conveyance of the suit property and on failure of such payment within the said period, the sale had to become final. It is stated that within the said period, the plaintiff had not paid the amount and, therefore, sale in favour of the father of the defendant had become absolute. It is stated that the transaction between the parties could not be said to be the transaction of mortgage and, therefore, no right of the plaintiff for redemption of mortgage arises and, therefore, the plaintiff is not entitled to the relief of mortgage in the suit.
(3.) ON appreciation of the evidence, the learned trial Judge came to the conclusion that the transaction between parties was of mortgage with conditional sale and the plaintiff was entitled to redeem the mortgage. The learned trial Judge further came to the conclusion that the suit for redemption of mortgage is within the time limit. The learned trial Judge thus allowed the suit and declared the plaintiff entitled for redemption of the suit property and ordered for preliminary decree under Order 34, Rule7(c) of the Code of Civil Procedure.;