JUDGMENT :

C.L. Soni, J.

This Appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant who has lost before both the Courts below.

2. This appeal was earlier allowed by judgment dated 29.8.2002. The said judgment was challenged by the respondent by filing Civil Appeal No.5614 of 2006 [SLP(C) No.7514 of 2003] before the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the said judgment of this Court and remitted the matter for disposal in accordance with law. This appeal is, therefore, placed before this Court to decide afresh.

3. The respondent-plaintiff had filed Civil Suit No.222 of 1973 to recover possession of the suit house from the defendant. The case of the plaintiff in the suit is that he was in need of money and demanded money from the defendant. The defendant agreed to give money and asked the plaintiff to execute agreement to sell (Banakhat) in respect of the suit house in his favour. The plaintiff received Rs.900/- from the defendant and executed agreement to sell in his favour on 29.12.1962. In the agreement to sell, it is provided that on repayment of Rs. 900/- by the plaintiff, defendant shall deliver back possession of the suit house to the plaintiff. It is further case of the plaintiff that the suit house remained in possession of the defendant in lieu of interest on an amount of Rs. 900/- and when the plaintiff was ready to repay amount of Rs. 900/-, he served a notice asking the defendant to deliver possession of the suit house by accepting Rs. 900/- from him in terms of the agreement between the parties. Defendant, however, gave evasive reply and did not give possession to the plaintiff. The plaintiff, therefore, filed present suit seeking recovery of possession of the suit house from the defendant by directing the defendant to accept Rs. 900/- from the plaintiff.

4. The suit was resisted by the defendant by filing written statement at Exh.10, stating therein that amount of Rs. 900/- was not given by the plaintiff by way of loan but the said amount was given on executing agreement to sell by the plaintiff with possession of the suit house. It is further stated that after execution of the agreement to sell, defendant further paid Rs. 300/- to the plaintiff and thus the plaintiff received full amount of consideration from the defendant but the plaintiff did not execute sale deed in favour of the defendant.

5. On the basis of the pleadings, learned Trial Judge framed following issues at Exh.12 and recorded his findings against each of the issues, which are mentioned below:-

(1) Whether plaintiff proves the suit Banakhat of the suit property dated 29.12.62.

(2) Whether plaintiff proves that he took a loan only Rs. 900/- from the defendant by way of the suit Banakhat of 29.12.62 ?

(3) Whether the plaintiff proves that the possession of the suit property was given to the deft. In time of interest of Rs. 900/- received by the plaintiff from the defendant ?

(4) Whether defendant is enjoying the possession of the suit property as its absolute owner ?

(5) Whether the plaintiff proves the terms of re-conveyance of the suit property as alleged ?

(6) Whether the plaintiff is entitled to recover the possession of the suit property from the defendant on payment of Rs.900/- ?

(7) Whether defendant proves the payment of full consideration of the suit property ?

(8) Whether deft. is the owner of the suit property ?

(9) Whether the plaintiff had no right, title or interest in the suit property ?

(10) Whether the plaintiff is entitled to the mesne profit as prayed for ?

(11) Whether the suit is in the present form is not maintainable ?

(12) Whether the suit is time barred ?

(13) What order and decree ?

Findings of the Trial Court to the said issues are as under:-

(1) Not proved

(2) Not proved

(3) Not proved

(4) Not proved

(5) Not proved

(6) proved

(7) Not proved

(8) Not proved

(9) Not proved

(10) No

(11) It is maintainable

(12) No

(13) As per final order

6. Before Trial Court, parties led oral evidence and also produc