JUDGMENT :

M G SEWLIKAR, J.

1. This appeal is preferred by the original defendant against the judgment and decree passed by the learned 4th Additional District Judge, Nanded in Regular Civil Appeal No. 280 of 1987 dated 01.08.1992 reversing the judgment and decree passed by the learned C.J.J.D. Mukhed in Regular Civil Suit No.10 of 1985 dismissing the suit on 30.11.1987.

2. Facts giving rise to this appeal are as under:

The respondent-Sitaram herein (the original plaintiff) filed Regular Civil Suit No.10 of 1985 alleging that he is the brother of the husband of the appellant-Chandrabai (original defendant). The respondent is the owner and was in possession of the suit land Survey No. 331/4 ad measuring 95 R situated at Mukhed. The respondent was in need of Rs.2500/- and therefore, the respondent mortgaged the suit land in favour of the appellant for Rs.2500/- and executed a mortgage deed in favour of the appellant on 08.04.1981, by registered sale-deed with a condition to get it redeemed from the appellant after the payment of Rs.2500/-. It is further alleged that on the very day of the execution of the above deed, the appellant executed a bond in favour of the respondent with a condition that on receiving the amount the appellant will release the suit land in favour of the respondent. Since the date of mortgage the appellant is in possession over the suit land as mortgagee. The respondent requested the appellant to take back the amount of Rs.2500/- and deliver back the possession of the suit land to the respondent but the appellant refused to act according to the terms of the agreement. Therefore, the respondent issued a notice to the appellant through his advocate on 07.09.1984, which was received by the appellant. The appellant refused to redeem the suit land in favour of the respondent and therefore the respondent was constrained to file this suit for recovery of possession.

3. The appellant filed her written statement at Exhibit-12 in the record of the trial Court. She has denied all the allegations of the plaintiff-respondent in toto. She has alleged that the deed executed on 08.04.1981 was not a sale with a condition of re-purchase. No bond was executed by the appellant in favour of the respondent. She has alleged that the respondent had agreed to sell the suit land to the appellant for a consideration of Rs.2500/- one month before the sale-deed dated 05.04.1981. The respondent had obtained Rs.1,000/- from the appellant on the date of agreement of sale. The appellant had delivered possession of suit land to the respondent on the date of agreement of sale. Remaining amount was to be paid at the time of sale-deed and accordingly remaining amount of Rs.1500/- was paid on 08.04.1981 and sale-deed was accordingly executed. She, therefore, prayed for the dismissal of the suit.

4. The learned trial Court framed issues at Exhibit-13 in the record of the learned trial Court. After adducing of the evidence and after hearing the parties, the learned trial Court dismissed the suit holding that the transaction was not a sale with a condition of re-purchase but it was an out and out sale. This decree of the learned C.J.J.D. Mukhed was assailed in R.C.A. No. 280 of 1987. The learned 4th Additional District Judge, Nanded held that the transaction was a sale with a condition of re-purchase and accordingly decreed the suit. This order is impugned in this appeal.

5. Heard Shri Warad the learned counsel for the appellant and Shri Bhavthankar the learned counsel for the respondent.

6. Shri Warad submitted that in terms of Section 58(c) of the Transfer of Property Act, the transaction is an out and out sale as the condition of re-purchase is not embodied in the same document. The judgment and decree passed by the learned First Appellate Court suffers from non application of mind. As against this Shri Bhavthankar argued that the appellant had executed a bond on 08.04.1981 itself which indicates that the appellant had agreed to reconvey the property