BHASKAR BHATTACHARYA)

1. This First Appeal is at the instance of plaintiffs in a suit for specific performance of contract and other relief and is directed against the judgment and decree dated June 13, 2011 passed by the 3rd Joint Civil Judge [Senior Division] at Vadodara in Special Civil Suit No. 1016 of 1999 thereby dismissing the suit on the ground of res judicata.

2. Being dissatisfied, the unsuccessful plaintiffs have come up with the present First Appeal.

3. The following facts are not in dispute.

The land in dispute originally belonged to one Ranchhodbhai Khushalbhai. On 25th November 1968, an apparent sale-deed was executed by the said Ranchhodbhai Khushalbhai in favour of one Fakirbhai Jibhai, predecessor-in-title of the present plaintiffs. In the said registered deed of sale, there was a clause that if Ranchhodbhai Khushalbhai, after completion of 5 years returns the sum mentioned in the deed to the purchaser, the purchaser would be bound to return the land to the seller. Subsequently, Ranchhodbhai Khushalbhai died and in the year 1974, there was a fresh agreement for sale between Fakirbhai Jibhai and the defendants by which the price of the selfsame land was fixed at Rs.15,500/-. In the said agreement, it was mentioned that out of the said sum of Rs.15,500/-fixed as the proposed consideration, a sum of Rs.8000/- had already been paid as per earlier deed dated November 25, 1968, a further sum of Rs.3000/- was paid on April 19, 1972 and a further amount of Rs.4400/- was paid on November 4, 1974 aggregating a sum of Rs. 15,400/- which should be adjusted and thus, only Rs.100/- was to be paid at the time of executing the sale-deed. In the said agreement for sale, it was further specified that in view of the fact that the property was a fragmented one, the sale-deed would be executed the moment the impediment of sale of fragmented land would be lifted.

4. It may not be out of place to mention here that the deceased Ranchhodbhai Khushalbhai filed a suit being Regular Civil Suit No. 1444 of 1982 for declaring that the apparent sale-deed dated November 25, 1968 was in fact a deed of mortgage and he prayed for redemption of the said mortgage as additional relief. The learned trial Judge dismissed the said Regular Civil Suit No. 1444 of 1982.

5. Being dissatisfied, Ranchhodbhai Khushalbhai preferred an appeal being Appeal No. 4 of 1993 and the first appellate court declared that the sale-deed dated November 25, 1968 was in essence a deed of mortgage and thus, the appeal was allowed by the first appellate Court and a decree of redemption of mortgage was passed with a further direction upon the defendants therein for restoration of possession. The defendants in the earlier suit, who are predecessor-in-title of the plaintiff of the present suit, filed a Second Appeal before this High Court, which was dismissed, and a Special Leave Application preferred against such decision also ended in dismissal.

6. It is also pertinent to mention here that in the earlier Regular Civil Suit No. 1444 of 1982, the predecessor of the present plaintiff put forward as defence the agreement of sale dated November 4, 1974, which is the subject matter of the present suit, for resisting the prayer of the predecessor-in-interest of the defendants and after taking into consideration the said agreement, the first appellate court in the earlier litigation held that the original transaction dated November 11, 1968 read with the agreement for sale dated November 4, 1974 made it clear that the transaction was a mortgage.

7. By the present suit, the plaintiffs have prayed for the following relief:

“(1). Decree for Specific Performance of Contract dated 4.11.74 Annexure 'A' may be passed in favour of the plaintiffs against the defendants.

(1A). If decree for Specific performance of Contract is not passed, decree for recovery of Rs.14,00,000/- (Forteen lacs) may be passed.

(1B). If necessary, partition of the suit land may be made and thereafter, decree for sp