( 1. ) THIS is a second appeal by the plaintiff. The facts as found by both the Courts below are that the defendant executed a sale deed dated 12th July 1960 for a consideration of Rs. 400/-in respect of certain plots of land. The plaintiff filed the present suit in 1964 for possession over the property from the defendant on the ground that be had purchased the property from the defendant by means of a sale deed. The defendant in the written statement pleaded that the transaction between the parties was not that of a sale at all but the defendant had borrowed Rs. 400 /- from the plaintiff at Rs. 3 and 2 annas per cent per annum interest and in order to secure the repayment of this amount this document was executed. Paragraph 2 (c) of the written statement is as follows : "the parties had further agreed that on repayment of the loan with interest, the sale deed would be returned to the defendant by the plaintiff. " According to the defendant, therefore, the sale deed was executed in order to secure the loan which the plaintiff had given to the defendant and that this sale deed was to be returned to the defendant, i. e. , the sale was to be deemed cancelled when the amount with interest was repaid to the plaintiff. These terms clearly make out a case of mortgage by conditional sale. But this condition of cancellation of the sale deed and its return to the defendant on repayment of the amount was not included in the deed itself. On account of the proviso to section 58 (c) of the Transfer of Property Act, unless this condition was included in the deed itself, it could not be treated as a mortgage by conditional sale. The transaction must, therefore, be treated as a sale of the property. The position, in short, therefore, is that a valid document for consideration was executed by the defendant in favour of the plaintiff. The parties intended the transaction to be a mortgage but, in the eye of law, it must be treated as a sale. Such a document, therefore, cannot be rejected as a wholly sham transaction unenforceable in law. The mere fact that the plaintiff did not take possession for some years cannot obliterate his title or prove that it was sham.

( 2. ) THE Court below has relied upon a Single Judge decision of this court in which a similar document was treated as ineffective in law. On a perusal it appears that there are two more Single Judge decisions of this Court in which a similar view seems to have been taken. I am, therefore, referring this matter for consideration by a Division Bench that in these circumstances the document cannot be treated as a sham transaction. A valid title passes to the purchaser. The only relief that can be given in such cases is that decree be passed in favour of the plaintiff for possession of the property according to the document but the defendant be directed to pay up the amount within the specified time. In case the amount is paid in time, the decree would be deemed discharged. Such a decree would meet the ends of justice, but to hold that the sale deed although executed to secure the amount is a sham transaction would be doing injustice to the plaintiff.

( 3. ) I, therefore, direct that this case be listed before a Division Bench for disposal. [the case was then heard by Bhargava and A. P. Sen JJ. who pronounced the following judgment. ] bhargava J.-This second appeal by the plaintiff is before us for disposal under the order dated 5-10-1970 made by the learned Chief Justice.

( 4. ) THE material facts are these. The plaintiff instituted a suit claiming possession of three acres of land situated at village Acholi, tahsil Balodabazar, against, the defendant on the basis of a registered sale deed dated 12 7-1960 executed by the defendant for a consideration of Rs 400/ -. The plaintiff urged in the plaint that he was not given possession of the land purchased by him by the defendant and whenever the plaintiff went to cultivate the said land, the defendant did not allow him to do so. He, the