R. B. Mehrotra, J. - (1.) This is defendants second appeal. Facts necessary for the decision of the appeal are as under :
(2.) CHHOTEY Lal plaintiff filed original Suit No. 469 of 1976 in the court of Munsif, Allahabad, arraying Smt. Rajjo Bibi, Smt. Munni Bibi and Smt. Mawan as defendants in the suit. The relief claimed in the suit was that the property in dispute, which was mortgaged by the predecessor-in-interest of the plaintiff in favour of the predecessor-in-interest of the defendants for Rs. 1,000 be redeemed in favour of the plaintiff and the possession thereof be given to the plaintiff. The suit was contested by the defendants on the ground that the deed dated 13. 8. 1934 was a sale-deed and not mortgage, as such, the suit is misconceived. The defendants also pleaded that the suit is barred by time and defendant No. 1 is bona fide purchaser of the property from Abdul Majid, the original transferee. On the basis of the pleadings of the parties, the trial Court framed issues. Out of the aforesaid issues framed by the trial Court, only following two issues are relevant for the decision of the present appeal ; " (1) Whether the transaction dated 13. 8. 34 is a mortgage redeemable on payment of principal mortgaged money Rs. 1,000 which has been deposited in the Court, or it is a sale outright with no liability of redemption? (5) Whether the suit is barred by time? The trial Court on consideration of evidence, dismissed the plaintiff's suit and held that the transaction dated 13. 8. 34 was an outright sale and the suit for redemption of property treating the aforesaid document to be a mortgage is misconceived. The trial Court did not decide issue No. 5 in view of the findings given in favour of the defendant No. 1 on issue No. 1.
(3.) AGGRIEVED by the aforesaid, judgment, the plaintiff filed Civil Appeal No. 291 of 1978. The Additional Civil Judge, Allahabad, vide his judgment dated 15. 2. 1980 allowed the plaintiff's appeal and held that the document dated 13. 8. 34 was a mortgage with a condition to repurchase the property and the suit of the plaintiff was held to be within time. On the basis of the aforesaid findings, the appellate court decreed the suit of the plaintiff for redemption of property, set aside the judgment of the trial Court and directed that preliminary decree be passed under Order XXXIV, Rule 7, C. P. C. in favour of the plaintiff. Aggrieved by the aforesaid judgment, the defendants filed the present second appeal in this Court. This Court has admitted the appeal and has framed following two questions as substantial question of law arising in the appeal; (1) Whether the transaction in suit was an outright sale or a mortgage? (2) Whether the suit was filed within time?;