Judgment

VENKATACHALA, J

( 1 ) THIS Civil by special leave is directed against the judgment and decree dated 29/11/1977 rendered by a Single Judge of the Gujarat High court in Second Appeal No. 348 of 1973, which arose out of Regular Civil Suit No. 921 of 1966 filed in the court of Joint Civil Judge, Baroda (Civil court) by the appellant herein as plaintiff against Respondents 1 and 2 herein - Defendants 1 and 2 for redemption of suit properties which were mortgaged as security for certain monies borrowed by the plaintiff from Defendant 1 under two deeds of mortgage executed in the year 1961.

( 2 ). Plaintiff filed the suit for redemption of the said mortgages in the year a 1966. Defendant 2, brother of Defendant 1 had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the corning into existence of the mortgages. That suit was resisted by the defendants, each of them having filed separate written statements which in substance did not differ from each other. The defence in those written statements was that Defendant 1 and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. It was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to Defendant 1 by receiving a sum of Rs. 4,400. 00 as consideration for the sale. Even if the sale of said properties in favour of Defendant 1, it was asserted therein, was not proved, they continued to be tenants of the said properties on the date of suit as they were tenants even before the date of coming into existence of the mortgages. The issue relating to their claim that they were tenants of the said properties - the agricultural lands, as urged therein, had to be referred by the Civil court to the Mamlatdar under Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 - "the BTandal Act" for recording his finding thereon and the suit had to be stayed pending receipt of the finding thereon so that the suit may be finally disposed of on the basis of such finding. The Civil court notwithstanding the defence of the defendants taken in their written statements that the suit had to be stayed for obtaining the finding on their claim of tenancy under the BTandal Act, framed the issues in the suit on the basis of the pleadings of the parties and after trial recorded its findings thereon. Such findings were firstly, that the defendants had failed to prove that the suit properties were sold in favour of Defendant 1 subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly, that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly, that the mortgages of the suit properties were mortgages by conditional sale. On the basis of findings so recorded by the Civil court, it also made a preliminary decree in favour of the plaintiff for redemption of the suit properties. Though the defendants filed an appeal in the court of the District Judge, Baroda against the said preliminary decree that appeal came to be dismissed on 17/8/1972 affirming the judgment and decree of the Civil court.

( 3 ). However, the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the High court of Gujarat. A learned Single Judge of the High court, who heard the second appeal, while upheld the concurrent findings of the courts below that the deeds of mortgage executed by the plaintiff in respect of the suit properties in favour of Defendant 1 were mortgages by conditional saleand the defendants had failed to prove that there