The judgment establishes the importance of analyzing the intention of the parties and the fulfillment of conditions for protection under Section 53-A of the Transfer of Property Act in cases involving redemption of mortgage.

1. The appeal is filed against the judgment and decree of Regular Civil Appeal No. 358/1997 which was pending in District Court Ahmednagar. The appeal of the present respondents, plaintiffs, is allowed by the District Court and the suit filed by the respondents for relief of redemption of mortgage is decreed. Both the sides are heard.

2. The suit was filed in respect of land Survey No. 655/4 (Gat No. 2132), admeasuring 2 hectares 31 R situated at village Deolali Pravara, Tahsil Rahuri, District Ahmednagar. The owner of this land has right to take water from the well situated in previous Survey No. 655 in the proportion of the area.

3. It is the case of the respondent, plaintiff that in the year 1970 the suit property was given by way of mortgage to Khushalchand, the predecessor-in-title of present appellant for securing debt amount of Rs.5000/- taken from Khushalchand. The document of mortgage was registered and the period of 5 years was mentioned in the document. It is contended that before expiry of the period, the amount was tendered to defendant No.1, Navinchand, successor of Khushalchand, but he refused to accept the amount. It is contended that the possession of the land was given to Khushalchand and so possession was also to be returned by defendant No.1 to the plaintiffs. It is contended that notice was then issued in the year 1984 through Advocate and they were requested to accept the amount and return back the possession. It is contended that false reply was given by successors of Khushalchand and they refused to return back the land and so cause of action took place for the suit. Relief of redemption of this mortgage was claimed.

4. Defendant No.1 filed written statement and contested the matter. He did not dispute that the suit land was initially belonging to the plaintiffs. The defendant contended that under document dated 15-9-1970 the land was given in possession of Khushalchand and under the disputed document, the transaction of absolute sale was made and it was not a mortgage transaction. It is contended that Khushalchand died in the year 1972 and the plaintiffs were not in a position to return the money and repurchase the property as per the aforesaid agreement. Defendant No.1 contended that on 28-5-1974 the plaintiffs agreed to sell the suit property and one more land viz Survey No.655/2 to the defendant No.1 for consideration of Rs.42,000/- and the agreement was written on a stamp paper. It is contended that on the date of the agreement cash amount of Rs.10,000/- was given and the previous amount of Rs.5,000/- was adjusted as earnest money. It is contended that remaining amount of Rs.27,000/- was to be given at the time of execution of sale deed and the sale deed was not immediately executed as it was necessary to take permission under the provisions of the Prevention of Fragmentation and Consolidation of Holdings Act. It is contended that on 28-5-1974 under agreement of sale possession of the land Survey No.655/4 was confirmed but the possession of Survey No.655/2 was to be given after taking permission of the revenue authorities.

5. It is the case of the defendant No.1 that he was always ready and willing to perform his part of contract. He contended that he is entitled to the protection of Section 53-A of the Transfer of Property Act as he came in possession as the part performance of the contract. Defendant No.1 admitted that notice dated 3-1-1984 was issued by the plaintiffs to him and he admitted that reply was given by him. Defendant No.1 contended that he has spent huge amount for improving the quality of the land and he has spent amount for preparing the land for horticulture. He prayed for dismissal of the suit.

6. Issues were framed on the basis of the aforesaid pleadings by the trial Court. Only the plaintiff gave evidence. The plaintiff was cross examined to some extent but as no interest was shown to further cross examine the plaintiff, order of "No Cross" was made by the trial Court. The