Prakash Gupta, J. - (1.) THE instant Civil First Appeal under Section 96 of the Code of Civil Procedure has been filed by the appellant -defendants being aggrieved by the impugned judgment and decree dated 13.3.1997 passed by the learned Additional District Judge No. 1, Ajmer (hereinafter referred to as 'the learned trial court') in Civil Suit No. 238/1992 whereby the learned trial court decreed the suit filed by plaintiff -respondents for redemption of the disputed property.
(2.) BRIEFLY stated, the facts giving rise to the present appeal are that plaintiff -respondents namely; Shri Suraj Prakash Bhargava, Rama Bhargava, Laxman Kumar Bhargava, Santosh Kumar Bhargava and Sudhir Bhargava sons of Late Shri Shyam Sunder Bhargava, Smt. Tara Bhargava, Smt. Sudha Bhargava, Smt. Shashi Bhargava, Abha Bhargava daughters of Late Shri Shyam Sunder Bhargava and Shri Resham Bhargava son of Late Shri R.C. Bhargava filed a civil suit against the appellant -defendants and proforma respondents for redemption of the disputed property, the description of which has been given in Paragraph No. 8 of the plaint. It is stated in the plaint that for some reasons, debt became due on the plaintiffs and because of this, decrees for the amount of Rs. 22,500/ -, Rs. 15,600, Rs. 10,500/ - and Rs. 8,700/ - were passed by the various courts against the plaintiffs and in favour of S/Shri Dayashanker Bhargava, Advocate, Shri Somdutt Bhargava, Shri Sachchidanand Bhargava Advocate and Shri Y.N. Bhargava and the proceedings for execution of the decrees were pending. As per the averments in the plaint, with a view to saving the properties from auction, Shri Daya Shanker Bhargava, who was the father of defendant No. 1 and was father -in -law of defendant No. 2, advised to mortgage the disputed property for Rs. 57,400/ -. He also told that he would repay the loan amount to the debtors. As per the plaintiffs at the relevant time, provisions of Bombay Money Lending Act were in force and since neither Shri Daya Shanker Bhargava nor any of his family member had any license under the provisions of Money Lending Act, he advised them to mortgage the disputed property in such a manner that the provisions of the Act could not be made applicable. However, in the fact situation, the plaintiffs agreed to the suggestions of Shri Daya Shanker Bhargava and plaintiff Nos. 1 to 5 namely; Shri Suraj Prakash Bhargava, Rama Bhargava, Laxman Kumar Bhargava, Santosh Kumar Bhragava, Sudhir Kumar Bhargava and Smt. Kalawati W/o Shri Ramesh Chand Bhargava executed a sale -deed in favour of defendant Nos. 1 and 2. As per the plaintiffs it was also agreed between the parties that for the same property, defendant Nos. 1 and 2 will execute an agreement to sale in favour of plaintiff i.e. Smt. Kalawati W/o Late Shri RC Bhargava. On the date of the alleged sale -deed i.e. 14.12.1961 an agreement of sale was also executed in favour of defendant Nos. 1 and 2. It was mentioned in the plaint that the plaintiffs had never sold the disputed property but it was a usufructuary mortgage because at the time the sale -deed was executed, the value of the disputed property was three -four times of Rs. 57,400/ -. The sale -deed was executed as the parties were related to each other and related to Late Syam Sunder Bhargava. The document seemed to be a sale -deed but in fact it was a usufructuary mortgage. Thus, it was prayed by the plaintiffs that a decree for redemption of the mortgaged property be passed in their favour. Defendant Nos. 1 and 2 filed their written statement and denied the averments made in the plaint. Disputing the date of execution of the document, it was mentioned that it was a simple case of selling the disputed property and not of a usufructuary mortgage. After sale of the disputed property on 14th December, 1961, on the same day, an agreement to sale was executed in between the parties to the effect that in the event of repayment of the amount of Rs. 57,400/ - till 15th December, 1966, the disputed property would be re -sold by defendant Nos. 1 and 2 but the plaintiffs have failed to fulfill the terms and conditions of the agreement as they did not repay the amount of Rs. 57,400/ - by the stipulated date. Therefore, defendant Nos. 1 and 2 were not bound by the condition regarding resale of the property to the plaintiffs and the suit is liable to be dismissed as the agreement to sale was not a usufructuary mortgage. It was also mentioned that the suit is barred by limitation. It was further mentioned that they duly replied to the telegram dated 15th December, 1966 of the plaintiff and being satisfied by the same, the plaintiffs did not file any suit for specific performance. Thus, it was prayed that the suit of the plaintiffs be dismissed as they have no right to file the suit showing the transaction as usufructuary mortgage.
(3.) ON the basis of the pleadings of the parties, the learned trial court framed following issues: - - ;