- (1.) THIS Second Appeal has been filed against the judgment and decree dated 11.6.2004 passed by the learned Additional District Judge, Fast Track Court No. -IV, Deoghar, in Title Appeal No. 11 of 2000 affirming the judgment and decree 10/5/201dated 4 Page 7 2.2.2000 5 passed by the learned Sub -Judge -V, Deoghar in Title Suit No. 60 of 1986/263 of 1987.
(2.) THIS suit was instituted by the plaintiff -appellants for declaration that '' (i)the sale deeds dated 16.7.1986 and 30.8.1986 executed by defendant Nos. 2 and 3 respectively is illegal, void and inoperative, (ii) the sale deed dated 23.11.1981 executed by plaintiffs 1 to 4 and defendant second party in favour of defendant first party, is a deed of mortgage and not a deed of conditional sale and under this document no absolute title and.ownership was passed to defendant first party, and (iii) for declaring the right of pre -emption in favour of the plaintiffs and directing defendant first party to execute absolute sale deed in favour of the plaintiffs on receiving proportionate amount of value of defendant second party. Mr. Shivnath, learned Senior Counsel, appearing for the appellant assailed the impugned judgments on various grounds. He further submitted that interpretation of document is involved in this appeal, which is a substantial question of law. Referring to Paragraph -15 (at page -15 of the lower appellate court judgment), he further submitted that in spite of clear pleadings made in Paragraph -11 of the Plaint, the lower appellate court observed that there was no pleading and wrongly ignored the evidence in support of such pleading. He also relied on (1999)3 SCC 573, Vidhyadhar vs. Manikrao and Another.
(3.) IN Paragraph -11 of the plaint it was said that although the deed dated 23.11.1981 was described conditional sale deed, but actually it is a mortgage deed and the defendant first party was fully deed dated 23.11.1981.;