This is original plaintiff's second appeal directed against the decision of the learned Assistant Judge Mehsana given on October 26, 1967 in Regular Civil Appeal No. 19 of 1966. The learned Judge has thereby allowed the appeal of the respondent-defendant and dismissed the plaintiff's Regular Civil Suit No. 27 of 1965 which suit was decreed by the learned Civil Judge, Kalol, by his judgment and decree dated December 27, 1965. The plaintiff's suit was for redemption of an alleged mortgage Ex. 20 dated June 22 1953. The said document is an ostensible sale-deed. There is a condition incorporated in the document providing for the reconveyance of the property to the plaintiff on a fixed date which would fall on the completion of five years of the execution of the ostensible saledeed. The plaintiff's case was that the said transaction was a mortgage by conditional sale and not a sale outright with a condition of re-purchase. It was his case that by incorporation of the said condition, the transaction which was ostensibly a sale was in its true character a mortgage transaction. The learned trial Judge construed the suit document Ex. 20 in the context of the surrounding circumstances, namely :-

I. That certain date was fixed for repayment and for reconveyance.

II. That the price fixed originally was Rs. 1,551/- but as the plaintiff was to meet the expenses of the registered document, the consideration was raised to Rs. 1,650/-.

III. That the amount of consideration which was Rs. 1,650/- was inadequate for a sale transaction as there was scarcity of land in the area and the land was costly and no land-holder was prepared to sell the same.

IV. That the defendant did not reply to plaintiff's notice Ex. 24 dated 15-08-64 which was admittedly served on, the defendant and in which notice the plaintiff had alleged that the transaction was one of mortgage by conditional sale.

V. That the plaintiff was in need of money to meet his debts.

VI. That the defendant did not produce the previous document which was executed in the defendant's account-book and which would have shown the real nature of the transaction.

VII. That the defendant did not hold a money-lending licence.

Having regard to these circumstances and in the context of the language used in the document, the learned trial Judge found that the real character of the document was a mortgage by conditional sale and not a sale outright with a condition of repurchase. He thus passed a preliminary decree of redemption to be drawn under Order 34, Rule 7 of the Code of Civil Procedure and in Form No. 7B of Appendix D of the Code. In defendant's appeal, the learned Assistant Judge, Mehsana has found that the language of the document was not ambiguous and that even otherwise the circumstances showed that the document was one of outright sale. He thus accepted the appeal of the defendant and dismissed the suit and reversed the preliminary decree of redemption of the property that was passed by the learned trial Judge. It is against this decision that the present second appeal is directed.

2. It is not in dispute that the parties reside in village Amja of Taluka Kalol, District Mehsana. They are owners of neighbouring agricultural lands. The transaction which is evidenced by registered document Ex. 20 dated June 22, 1953 and which is the suit document was preceded by negotiations between the parties to which defendant's witness Ambalal examined at Ex. 39 was a party. Ambalal who happended to be the Sarpanch of the Gram village was instrumental in bringing about the transaction. A 'Kachha' writing for this transaction on a consideration of Rs. 1,551/- was made in the account-books of the defendant and this was written by the said witness Ambalal and attested as admitted by him in his evidence. This writing has not been produced by the defendant, although It was in his possession. According to the plaintiff if the writing had been produced, it would have shown the real character of the transaction