VISHNUDEO NARYAN.J. - (1.) THIS appeal at the instance of the plaintiffs -appellant is directed against the impugned judgment and decree dated 18.7.1988 and 25.7.1988 respectively passed in Title Appeal No. 26 of 1987 by Shri Jugal Kishore Prasad, 6th Additional District Judge, Palamau at Dal -tonganj whereby and whereunder the judgment and decree dated 27.6.1987 and 8.7.1987 respectively passed in Title Suit No. 11 of 1986 by Munsif, Daltonganj. Palamau were affirmed and the said appeal was dismissed.
(2.) THE plaintiffs -appellant had filed Title Suit No. 11 of 1986 for declaration that the transaction dated 24.6.1977 though ostensibly expressed in the shape of a deed of sale was really a transaction of usufructuary mortgage which has made clear in the deed of agreement executed by the defendant -respondent on the same date simultaneously in favour of the plaintiffs -appellant and for a further declaration that the said transaction of the usufructuary mortgage dated 26.6.1977 stands redeemed under Section 12 of the Money Lenders Act. The plaintiffs -appellant has further sought for direction to the defendant -respondent to give vacant possession of the suit land to the plaintiffs -appellant failing which the plaintiffs -appellant be put back in possession of the suit land through the process of the Court. The case of the plaintiffs -appellant, in brief, is that they are the occupancy raiyat of the suit land detailed in Schedule A of the plaint and they fell in need of money in the month of June, 1997 and approached the defendant -respondent for a loan of Rs. 3.000/ - against the usufructuary mortgage of the suit land but the defendant -respondent agreed to lend the said amount on the condition that they execute a deed of sale for the land in his favour as he has no money lending licence and the defendant -respondent further told that a transaction between them will be really an usufructuary mortgage transaction and it will be made clear in the deed of agreement which he will simultaneously execute in their favour and the deed of agreement shall be executed by him simultaneously as part of the transaction, the recitals would be such as not to leave any doubt that the so called sale deed was really a deed of conditional sale by way of a deed of usufructuary mortgage. It is alleged that having regards to the pressing need of money and intimacy between them and the defendant -respondent the plaintiffs -appellant executed a deed of sale in favour of the defendant -respondent in respect of the suit land on 24.6,977 which was registered as deed No. 5365 and on that very day simultaneously the defendant -respondent also executed a deed of agreement in favour of the plaintiffs -appellant and the said deed of agreement was registered as deed No. 5366 dated 24.6.1977 and it was made clear in the deed of agreement by the defendant -respondent that the sale deed executed in his favour by the plaintiffs -appellant regarding the suit land is really a Baibulbafa deed meaning thereby the conditional sale deed which was really a deed of usufructuary mortgage though ostensibly it was termed as sale deed. It is also alleged that it was stipulated in the deed of agreement that default of payment of the amount of Rs. 3,000/ - by the date agreed upon between the parties and mentioned in the deed of agreement, the document executed by the plaintiffs -appellant in favour of the defendant -respondent would then become an absolute sale deed. The plaintiffs -appellant tendered Rs. 3,000/ - to the defendant -respondent within the period of due date as per term of the agreement which the defendant -respondent evaded to accept and, thereafter, the plaintiffs -appellant deposited the said amount through treasury challan No. 24 dated 22.6.1978 in view of the order of the Court in Miscellaneous Case No. 14 of 1978 under Section 83 of the Transfer of Property Act which was contested by the defendant -respondent in which he had made out a case that the document executed in his favour on 14.6.1977 by the plaintiffs -appellant was out and out a deed of sale and on hearing both the parties the learned Munsif held and decided that the transaction between the parties on 24.6.1977 was really a transaction of usufructuary mortgage. It is also alleged that the defendant -respondent has remained in cultivating possession of the suit land for more than 8 -1/2 years and therefore, the said transaction of usufructuary mortgage stands automatically redeemed after the expiry of a period of seven years in terms of Section 12 of the Bihar Money Lenders Act, 1974 and the entire amount due also stands duly satisfied. The plaintiffs -appellant demanded the vacant possession of the suit land which was denied. Hence, the necessity of the suit.
(3.) THE case of the defendant -respondent, inter alia, is that the plaintiffs -appellant had sold the suit land by executing a registered sale deed dated 24.6.1977 to the defendant -respondent for consideration of Rs. 3,000/ - and he came in possession over the same and got himself mutated in respect thereof and the said sale deed is out and out a sale deed and the defendant -respondent has acquired indefeasible right, title and interest therein. It is alleged that there was never a talk of advancement of loan between them and he has never agreed to advance loan to the plaintiffs -appellant and he had never agreed to lend money to them on the condition that the plaintiffs -appellant shall execute a deed of sale which shall be treated as usufructuary mortgage transaction. It is also alleged that the deed of agreement which was executed by him on the date of the sale deed as executed by misrepresentation giving an option to the plaintiffs -appellant to obtain re -coveyance of the suit land for the same amount of Rs. 3,000/ - if the plaintiffs -appellant wanted to do so within a year and the contents of the deed of agreement as never read over and explained to him. It is also alleged that it is hard to believe that he would have agreed to recite the expression Baibulbafa in the agreement knowing well that he has obtained absolute sale deed and the recitals in the agreement are fraudulent and meant to have wrongful gain to the plaintiffs -appellant. The further case of the defendant -respondent is that the sale deed executed by the plaintiffs -appellant is not a mortgage and Section 12 of the Bihar Money Lenders Act, 1974 has no application in this case and the only course open to the plaintiffs -appellant was to obtain a decree for specific performance of contract in accordance with law within the statutory period which the plaintiffs -appellant did not take and the proceeding under Section 83 of the Transfer of Property Act is not maintainable in view of the fact that the transaction is out and out a sale and not an ostensible sale.;