P. C. JAIN, J. - (1.) THIS revision petition is directed against the order dated 23. 07. 1984, passed by the learned District Judge, Jhalawar in Civil Suit No. 1 of 1979, whereby the learned District Judge dismissed the application dated 19. 03. 1983, filed by the petitioner-plaintiff praying that the burden of proof of issue No. 1 should be placed on the non-petitioners-defendants.
(2.) BRIEFLY stated the facts of the case are that the petitioner and non-petitioners No. 2 and 3 filed a suit for redemption of mortgage dated 29. 07. 1969 gainst non-petitioner defendant No. l. It was contended that the suit house was mortgaged by conditional sale with non-petitioner defendant for Rs. 33,000/-, by the father of the petitioner. It was also stipulated that On return of the amount the house would be resold to the petitioner's father. Non-petitioner-defendant filed a written statement and alleged that it was not a mortgage by conditional sale, but it was out-right sale with the condition of re-purchase within five years. On the basis of the pleadings of the parties, the learned trial Court framed issue No. 1 as follows :- , D;k fookn xzlr tk;nkn Ds lecu/k esa e`rD 'kaDj yky o izfroknh Ds e/; fnukaD 29-7-69 Dks tks ys[ki= leikfnr gqvk Fkk og eksjxst ckbz D. Mh'kuy lsy ugha gs] vksj vkv jkbzv lsy gsa** The burden of proof of this issue was placed on the petitioner. The petitioner, therefore, moved an application on 19. 03. 1984 with the prayer that the burden of proof should be placed on the non-petitioner defendant. The learned trial Court dismissed the application. Being aggrieved by the same, the petitioner has preferred this revision petition. Shri J. K. Singhi, learned counsel for the petitioner has raised the following two grounds to assail the order dated 23. 07. 1984:- 1. That the trial Court was required to decide the onus of proof with regard to issue No. l, but the trial Court did not confine itself to this controversy and proceeded to decide the dispute itself. The contention of Shri Singhi is that the learned trial Judge committed serious irregularity and illegality when he gave verdict that the suit document was an out-right sale and not mortgage by conditional sale. 2. That the execution of the document dated 29. 07. 1969 was admitted by the defendant non-petitioner No. l. From the document it is evident that it is a document of sale with the condition for re-purchase and, this condition of re-purchase is embodied in the same document and, therefore, there is a presumption that the document is a mortgage by conditional sale. In view of this position of law, the trial Court should have placed the burden of proof of issue No. 1 on the non-petitioner defendant.
(3.) SHRI Singhi, thus submitted that the trial Court committed a grave illegality affecting its jurisdiction which would seriously prejudice the case of the petitioner. On the other hand, Shri Gupta, learned counsel for the defendant- petitioner No. l, has submitted that there is no irregularity or illegality in the order passed by the learned trial Court. His submission is that the learned trial Court placed the onus rightly on the petitioner. He placed reliance on Hans Raj Vs. Hat. Ram (l), which placed reliance on Bhagwan Sahai vs. Bhagwan Din (2), wherein their Lordships of the Privy Council quoted with approval the following passage from Alderson Vs. White (3) : " The rule of law on the subject is one dictated by common sense, that prima facie an absolute Conveyance containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and becomes mortgage merely because the vendor stipulates that he shall have a right to repurchase. " In Shri Narain vs. Bhaskar (4), a Division Bench of the Nagpur High Court has observed that there is no presumption attaching to an ostensible ale-deed but the onus is on the party alleging that an ostensible sale is in fact a mortgage. In Dayath Saheb v. B. Bharamanna (5), the Mysore High Court held that the proviso to Sec. 58 is no authority for holding that merely because the condition is embodied in the same document the transaction must be deemed to be a mortgage. In Bhaiyalal v. Kishorilal (6) it was observed that the onus must lie upon the person who wants to construe a document contrary its tenor to establish the circumstances which go to prove that the sale evidenced by the document is only ostensible and not real. ;