1. This appeal is directed against the judgment and decree dated 27.2.1983, passed by the District Judge, Buldana in Regular Civil Appeal No.271/1979 by which the first appellate Court reversed the judgment and decree dated 10.12.1979 passed by the Civil Judge, Junior Division, Malkapur in Regular Civil Suit No.50/1977.

FACTS :

2. Appellant - Shankarlal filed a civil suit bearing Regular Civil Suit No.50/1977 in the Court of Civil Judge, Junior Division, Malkapur contending therein that he executed a nominal sale-deed on 23.11.1972 of plot No.14 admeasuring 2,000 sq. ft. owned by him in favour of the respondent/defendant for an amount of Rs.10,000/- because he badly needed the money for his business and treatment. The respondent had given a promise that the respondent/defendant would cancel the nominal sale-deed and re-execute the sale in favour of appellant/plaintiff upon repayment of Rs.10,000/-with 6% interest. He then stated that on 7.3.1977 however the respondent tried to take possession by starting digging operation on the suit plot. But the appellant obstructed him on the ground that the said sale-deed was nominal and not to be acted upon. He filed the suit for declaration that the said sale-deed be declared as 'simple mortgage' and the appellant be allowed to have a redemption thereof. Interim injunction operated during the pendency of the suit and further proceedings.

3. In the written statement that was filed by the respondent he claimed that the sale in question was an out and out sale for Rs.10,000/- and he had also started construction.

4. The trial Court in all framed five issues and held that the appellant had proved that the said sale-deed was in the nature of simple mortgage and was thus liable to be cancelled. The Court also held that the possession of the suit plot was not parted at the time of execution of sale-deed and the appellant was entitled to redemption of the said simple mortgage.

5. During the trial, the plaintiff examined himself i.e. P.W. 1 - Shankarlal, P.W.2 -Ramdas and P.W.3 -Gulabchand, the two attesting witnesses, P.W.4 -Ghanashyamdas, a broker and P.W.5 -Damodhardas the earlier vendor of the appellant. While respondent examined himself and D.W. 1 -Balmukund. Finally, the trial Court decreed the suit as aforesaid.

6. The respondent-defendant filed appeal before the District Judge, Buldhana who re-appreciated the evidence documentary as well as oral and came to a conclusion that the sale transaction was not a transaction of simple mortgage nor the same could be cancelled. The transaction was a pure and simple sale transaction. The appellant-plaintiff failed to prove that the same was simple mortgage and there were no circumstances showing that the said sale transaction was vitiated for any reason whatsoever. The District Judge, Buldhana thus allowed the appeal and set aside the decree passed by the trial Court.

7. The plaintiff/appellant filed this second appeal in this Court which was heard and finally decided by this Court on 16.10.1998 by a judgment. This Court allowed the second appeal and set aside the said judgment of the District Judge restoring the decree passed by the trial Court in the suit.

8. This Court held that a party could lead oral evidence to assert that the intention of the parties was to enter into a different transaction than the one recorded in the document. That the party could lead oral evidence to show that the document executed was never intended to operate as an agreement of what is recorded but some other agreement altogether, not recorded in the document, was entered into between the parties. This Court thus held relying on the judgment in the case of Smt. Gangabai w/o Rambilas Gilda...Versus...Smt. Chhabubai w/o Pukharajji Gandhi, reported in 1982 (1) Supreme Court Cases 4 that no bar under Sections 91 and 92 of the Indian Evidence Act would be obstructive. On facts and evidence, this Court further held that the judgment of the appellate Court was f