The main legal point established is the interpretation of Section 58(c) of the Transfer of Property Act, 1882, to determine the nature of a sale deed as a mortgage or an absolute sale.

JUDGMENT :

Goutam Bhaduri, J.

1. Heard.

2. The present Appeal is against the judgment and decree dated 30.04.2019 passed by the District Judge, Bemetara in Civil Suit No.16-A/2018 whereby, the suit filed by the Appellants/Plaintiff was dismissed.

3. (I) The brief facts of the case as pleaded are that the Appellants/Plaintiffs who are three in number namely Kamta Prasad, Yado Ram and Lakhbir Singh were sons of Dheluram-Defendant/Respondent No.2. They held a co-parcenary property, which was recorded in name of their father Dheluram. The Plaintiffs claimed that the partition was effected between them and the suit property which was sold by Dheluram belongs to them as it fell in their share. The sale deed was executed in respect of Khasra Nos.792 admeasuring 0.30 hectares and 796 admeasuring 0.64 hectares by father of the Plaintiffs. The Plaintiffs pleaded that their father was given a share of a different land. Over that background, in the year 2011, Dheluram sold the property to Defendant No.1-Pilwadas wherein, the right was claimed by the Plaintiffs. According to the Plaintiffs, they were in dire need of money and as such, a sham and bogus sale deed was executed by their father, though the suit land does not belong to him. It was further pleaded that on the same date of the execution of sale deed i.e. 26.05.2011, another agreement was executed which purports that it was a mortgage. A prayer was made that the suit property which bears Khasra Nos.792 admeasuring 0.30 hectares and 796 admeasuring 0.64 hectares belongs to Yado Ram and Kamta Prasad, the Plaintiffs. Defendant No.1- Pilwadas was the purchaser and prayer was made that he be restrained to interfere in their possession by way of a permanent injunction. (II) The Defendants denied the allegations made in the Plaint. It was further pleaded by execution of the sale deed on 26.05.2011 that they came into possession of the suit land by purchase and the sale deed was an absolute one and no mortgage was created. It was stated even otherwise that the agreement which was executed on 26.05.2011 does not create any right in favour of the Plaintiffs. It was stated that as per the Revenue Court’s order, since the dispute arose with regard to the possession, by order of the Revenue Court, they came into possession of the suit land and prayed for dismissal of the suit.

4. The learned trial Court framed as many as 6 issues and primarily, it was held that the sale deed dated 26.05.2011 was not a mortgage but it was an absolute sale. It was further held that no partition had ever taken place between the Plaintiffs and they are not entitled for grant of permanent injunction in respect of the suit property. Primarily on these two issues, the suit was decided, which resulted into dismissal. Hence this Appeal.

5. Being aggrieved by the said judgment and decree, learned Counsel for the Appellants/Plaintiffs submits that document Ex.P-1 shows that the sale deed was not an absolute one but was a mortgage. He further submits that no partition had ever effected, therefore, Dheluram did not have an absolute right to sell a particular part of the land to the purchaser-Pilwadas, Defendant No.1. He further submits that it being a settled proposition and no Cross Appeal having been filed, the finding of fact that no partition has affected would become absolute, therefore, the impugned judgment and decree is faulty, which needs to be interfered with by this Court.

6. Per contra, learned counsel for Respondent/Defendant No.1-Pilwadas, the purchaser submits that no prayer has been made in the suit for cancellation of the sale deed. He further submits that the Defendant, being the bona fide purchaser, was placed into the possession and the same could not have been disturbed. He further submits that the sale deed, once having been registered, would have a presumptive value and the suit was filed beyond 3 years of limitation period, therefore, it was barred by time. He placed reliance in the matter of Kashiram and o