- (1.) This appeal is filed against the judgment and decree dated 20-08-1990 in A.S.No. 91 of 1990 (A.S.No. 4 of 1984 on the file of Sub- Court, Madanapalle) on the file of Additional District Judge at Madanapalle setting aside the judgment and decree dated 29-9-1983 in O.S.No. 179 of 1982 on the file of the District Munsif, Thamballapalle. The plaintiff in the suit is the appellant. He died during the pendency of this appeal. Appellants 2 and 3 are brought on record as legal representatives of the sole appellant.
(2.) Necessary facts for the disposal of this appeal are as follows: A house bearing D.No. 3/74 in Puligantivandlapalle village is the subject-matter of the suit. The appellant claims that Poola Subbarayudu purchased vacant site under sale deed Ex. A-4 dated 26-9-1927, later constructed two houses in the said vacant site, sold one house to P.W. 3 Chinna Reddeppa and on 11-1-1978 under Ex. A-l Poola Subbarayudu and his son Venkataramana sold the suit property to him and there was a reconveyance agreement under which Poola Subbarayudu can repay the sale consideration amount within three years and thereafter the plaintiff has to execute a document reconveying the suit property to Poola Subbarayudu. It is also pleaded that subsequent to Ex. A-l sale deed, in February, 1978, defendant has unauthorisedly entered into possession of the suit property. The plaintiff filed the suit for declaration of his title and also for recovery of possession of the suit property from the defendant. The defendant resisted the suit. He claimed that Venkataramana, who is the son of Subbarayudu, is the absolute owner of the suit property and the said Venkataramana under Ex. B-l sale deed dated 24-2-1978 sold the suit property to him and inducted him into possession of the said property. Defendant denied that plaintiff was inducted into possession of the suit property. On the basis of the pleadings, the trial court settled appropriate issues for trial. Both the parties adduced oral and documentary evidence before the trial court. On a consideration of the entire evidence on record, the trial court found that the plaintiff purchased the property under the sale deed Ex. A-l and he is the absolute owner of the said property. Accordingly the trial Court decreed the suit of the plaintiff. Aggrieved by that judgment, the defendant preferred an appeal in A.S.No. 91 of 1990 before the Additional District Judge, Madanapalle. The Appellate Court construed Ex. A-l as a mortgage by a conditional sale and held that the only remedy of the plaintiff is to file a suit for recovery of mortgage amount and plaintiff is not entitled to file the suit for declaration of his title and for possession. Accordingly the lower Appellate Court allowed the appeal and set aside the decree passed by the trial Court. It dismissed the suit filed by the plaintiff. Aggrieved by the judgment of the lower Appellate Court, the plaintiff preferred the present appeal.
(3.) At the time of admission of this appeal, the learned Admission Judge treated the following two points formulated in the memorandum of appeal as substantial questions of law that arise for consideration in the present appeal. (1) Whether the lower Appellate Court has not erred in law in reversing the well considered judgment of the trial court on the sole ground that Ex. A-l is a mortgage and not a sale deed in the absence of even a denial in the written statement that it is not a sale deed (which amounts to admission under Order VIII Rule 5 C.P.C.)? (2) Whether the lower court has not erred in placing consideration on Ex. A-l as a mortgage without any denial or assertion by the plaintiff in the plaint that it is a sale deed with a condition to recovery, if the entire consideration is paid within three years?;