The main legal point established is that the technicality of an unregistered mortgage transaction does not prevent the owner from seeking possession based on title.

1. The appeal is filed against judgment and decree of Regular Civil Appeal No. 125/1981, which was pending in the Court of Additional District Judge, Jalna. The First Appellate Court has confirmed the judgment and decree of Regular Civil Suit No. 11/1971, which was pending in the Court of Civil Judge, Junior Division, Bhokardan, District Jalna. The decree of redemption of mortgage is given in favour of respondents. Both the sides are heard.

2. The suit was filed by respondents for redemption of mortgage and for possession of agricultural land bearing Survey No. 99/2 situated at Banegaon, Tahsil Bhokardan, District Jalna. The land admeasuring 13 Acres 35 Guntas was owned by one Shaikh Amir, husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 4. Shaikh Amir died seven years prior to the date of suit. IT Appeal No. is contended that in May 1950 Shaikh Amir had mortgaged the suit land to Sampat, original defendant No. 1, for consideration of Rs. 750/-. It is contended that the possession of land was given to defendant No. 1 and the defendant No. 1 was to recover the mortgage money by cultivating the land for the period of 20 years. It is contended that after expiry of 20 years, the possession of land was to be returned to the owner by Sampat.

3. It is the case of plaintiffs that even after expiry of 21 years, the possession was not returned by Sampat and his heirs and so, the suit was required to be filed. As the suit land was in possession of defendant Nos. 2 and 3, sons of defendant No. 1, they were made party defendants. It is the contention of the plaintiffs that permission of Collector was necessary for execution of possessory mortgage and as Sampat was in money lending business without holding licence for it, the document of mortgage was not created and the document of Ijaranama was created on 26.5.1950.

4. Defendants filed joint written statement. They admitted that Shaikh Amir was owner and plaintiffs are heirs of Shaikh Amir. They, however, denied that there was transaction of mortgage. They also denied that Sampat was doing the money lending business without licence.

5. It is the case of defendants that Shaikh Amir had given land on lease for the period of 20 years under registered document dated 26.5.1950. It is contended that Sampat became protected tenant in view of the provisions of Hydrabad Tenancy Act. It is contended that in the year 1957 Shaikh Amir agreed to sell the suit land to Sampat for the consideration of Rs. 1500/-and after paying entire consideration Isar Pavti was executed in April 1957 in favour of Sampat. It is contended that Sampat had returned original lease document to Shaikh Amir. It is contended that Isar Pavati was produced before the revenue authority in a proceeding and in the same proceeding the ownership was given to Sampat by Shaikh Amir.

6. It is the case of defendants that plaintiffs cannot contend that it was a mortgage document in view of provisions of section 92 of the Evidence Act. It is contended that it was necessary for the plaintiffs to file proceeding under H.A.D.R. Act (Debt Relief Act) and as such the proceeding was not filed, the suit is time barred. It is contended that the suit is not maintainable in view of provisions of Hydrabad Tenancy Act. It is also contended that the suit for possession is also time barred.

7. Issues were framed on the aforesaid pleadings. Both the sides gave evidence. The Trial Court held that it was usufructury mortgage. The Trial Court held that the suit is within limitation. The Trial Court held that defendants have failed to prove that there was the agreement of sale. The Trial Court further held that the defendants are not entitled to protection of possession. The First Appellate Court has confirmed the aforesaid findings. It is held that it was mortgage and has dismissed the appeal.

8. By order dated 25.1.1988 this Court has formulated the substantial question of law. The learned counsel for the appellant was allowed to argue on fo