JUDGMENT:

HARJIT SINGH BEDI,J.

1. In this appeal by special leave the facts have been taken from the judgment of the first appellate Court as they have not been detailed in the judgment of the High Court.

2. The plaintiff-appellant Rama Devi executed a mortgage/sale deed dated 15th May 1974 for 6 Bigha and 10 Biswas out of her total land area of 12 Bigha 1 Biswa for Rs.13,000/- as she needed funds for her business. In the document aforesaid, it was recited that in case the amount of Rs.13,000/- plus interest at the rate of 24% per annum was returned to her within a period of 5 years the land would be re-conveyed to her. It is the case of the appellant that she had made a request to the respondent within the aforesaid period for re-transfer but the respondent had refused to accede thereto. This refusal prompted the appellant to issue two notices dated 27th April 1979 and 9th April 1981 to the respondent but he refused to accept the same but under the influence of the local people he returned the possession of the land to her in June 1984. As the necessary re-conveyance had not been executed by the respondent, the appellant filed a suit praying that:

(1) A decree for redemption of the conditional mortgage deed dated 15.4.1974, registered on 24th May 1974 be passed in favour of the plaintiff and against the defendant in respect of the property as detailed below:

Property in dispute situated in Village Pokhrain, Tehsil Bhognipur, District Kanpur Dehat Area 6 Bighas 10 Biswas share out of 12 Bighas 1 Biswa of Plot No. 958.

(2) Relief of permanent injunction claimed restraining the defendant from interfering in plaintiff’s possession.

3. The defendant respondent admitted the execution of the document dated 15th May 1974 but contested the suit on various grounds. On the pleading of the parties the following issues were framed:

1. Whether the document dated 15.5.74 executed between the parties is a conditional Benama, as has been stated by the plaintiff in para 1 of the petition or it is of the nature of complete sale (out and out sale with a condition of repurchase) as has been strated by the defendant, its effect in both the circumstances.

2. Whether the defendant in the month of June 1984 has returned the possession to the plaintiff and the plaintiff is in possession of the land in dispute. If yes, then its effect.

3. Whether the suit for amendment (redemption) is not maintainable in law.

4. Whether the deal in suit is a complete sale with the effect of Zamindari Abolition Act.

5. Whether the plaintiff has not got done the re-sale within the prescribed time as has been stated by the defendant.

6. To what relief the plaintiff is entitled to.

7. What the defendant was in possession of the agricultural land in dispute as a cultivator upto the year 1984, as is the submission of the plaintiff.

8. Whether the defendant had got the document dated 15.5.1974 in question executed in place of mortgage on interest, as conditional sale, by way of conspiracy and fraud….in case yes, then its effect.

4. The trial court in its judgment dated 20th March 1996 decided issue Nos. 1 and 4 together and held that the document dated 15th May 1974 was not a mortgage but was in fact a sale and that the respondent continued to be in possession of the land in dispute. On issue Nos. 3 and 5, the learned trial Judge came to the conclusion that the appellant did not have any right to get the property re-deemed and on issue No.7 reiterated that the document dated 15th May 1974 constituted a sale. On issue No.8, the trial court held that there was no evidence of fraud etc. and accordingly dismissed the suit vide judgment dated 20th May 1996. An appeal was thereafter filed by the unsuccessful plaintiff.

5. The first appellate court framed two points for consideration and after examining the contents of the document dated 15th May 1974 and the evidence of the parties, endorsed the findings of the trial court that the document aforesaid was in fact a deed of sale and n