A sale deed must explicitly state conditions for re-transfer to qualify as a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act.

JUDGMENT :

(Naresh Kumar Chandravanshi, J.)

1 This first appeal has been filed by the appellant/plaintiff under Section 96 of the Civil Procedure Code, 1908 (henceforth, referred to as ‘CPC’), challenging the judgment and decree dated 28-11-2019 passed by the 2^nd Upper District Judge, Rajnandgaon (CG) in Civil Suit No. 35A/2015, whereby the civil suit filed by the appellant/plaintiff has been dismissed.

(hereinafter, parties would be referred as per their status shown in the plaint.)

2 Facts of the case in brief, are that, plaintiff filed civil suit for declaration and permanent injunction stating inter alia that, he is owner of land bearing Khasra No. 331/4, area 3.25 acre, situated at village Bamhnichar Bhatha, P.H. No. 48, Post Charbhatha, Tehsil Chhuria, District Rajnandgaon (henceforth referred to as ‘suit land’). He needed Rs. 1 lakh for his domestic work, which was given by defendant No. 1 subject to condition that he will execute registered sale deed in favour of defendant No. 1. Plaintiff executed registered sale deed (Ex. P-1) dated 29-11-2005 in respect of suit land. It is further pleaded by plaintiff that, defendant No. 1 had agreed to re- transfer the suit land vide registered sale deed to be executed in his favour after return of aforesaid amount, as such, sale deed (Ex.P-1) was not an actual sale deed, rather, it was ‘mortgage by conditional sale’. In this regard, the defendant No. 1 had also executed agreement (Ex. P-2) in favour of plaintiff on same day i.e. 29-11-2005. Plaintiff has returned sum of Rs. 90,000/- and Rs. 10,000/- on 14-3-2009 and 29-1-2011 respectively to the defendant No. 1, thereafter despite repeated requests, defendant No. 1 did not execute registered sale deed in favour of plaintiff. Therefore, plaintiff filed civil suit seeking declaration that, sale deed Ex. P-1 dated 29-11-2005 was executed for security of loan, therefore, it does not confer title or right over the suit land, as such, plaintiff is having title over it. He has also sought relief of permanent injunction against defendant No. 1 restraining him from interfering in his possession over the suit land.

3 Defendant No. 1 filed written statement denying substantive pleading made by plaintiff claiming therein that, plaintiff needed money to purchase a tractor and for domestic work. Therefore, he executed registered sale deed (Ex. P-1) in his favour after getting full sale consideration of Rs. 1 lakh. Possession of suit land was also handed over to defendant No. 1. Aforesaid amount was not given to the plaintiff as a loan, rather the transaction was absolute sale of suit land, as such, plaintiff had also handed over possession over it to the defendant No. 1. Sale deed (Ex. P-1) also does not stipulate that, it has been executed to secure loan. Defendant No. 1 has also denied execution of alleged agreement (Ex. P-2) for return of suit land vide registered sale deed in favour of plaintiff, as it does not contain signature of defendant No. 1. Plaintiff has also not returned any amount to him. Defendant No. 1 has further pleaded that transaction made between plaintiff and defendant No. 1 vide registered sale deed (Ex. P-1) was an absolute sale and not ‘mortgage by conditional sale’. After execution of registered sale deed (Ex. P-1), plaintiff had handed over possession over the suit land, but after filing civil suit, plaintiff has forcefully dispossessed defendant No. 1 from it. Therefore, defendant No. 1 filed counter claim seeking relief of vacant possession over the suit land from plaintiff.

3.1 Plaintiff has filed reply to the counter claim filed by the defendant No. 1 with the pleading that, he has never handed over possession to defendant No. 1 over the suit land, rather he is always in possession, as such, there is no question of dispossession of defendant No. 1 from the suit land. No cause of action arises in favour of the defendant No. 1 for filing counter claim, hence, it be dismissed.

4 Defendant No. 2 has filed written statement w