1. This second appeal has been filed by the defendant No. 1 against the judgment and decree dated 19.11.1998 passed by the District Judge, Datia in Civil Appeal No. 17A/97, whereby the learned Additional Judge affirmed the judgment and decree of the trial Court by which the suit of the respondent No. 1-plaintiffwas decreed.

2. A suit for declaration was filed by the respondent No. 1-plaintiff that he is owner of an area of 0.417 hectare of Survey No. 447 situated at Village Khiriya, Tahsil and District Datia. On 16.6.1989 he mortgaged the said land by executing a document in the form of sale deed (Ex.P.1). In addition to the sale deed executed on 16.6.1989 an agreement was also entered into between the respondent-plaintiff and appellant-defendant on the same date i.e. 16.6.1989. Simultaneously for execution of deed in favour of the respondent-plaintiff, as per the terms of the agreement (Ex.P.2) the respondent shall repay the amount of Rs. 8,000/- within a period of three years from the date of execution of Ex. P.1. As per the terms of the agreement the possession of the property is with the respondent-plaintiff. On 30th December, 1991 the respondent repaid the amount of Rs. 8,000/- along with interest @ 2% per annum as agreed between the parties and total sum of Rs. 11,000/- was paid to the appellant. The appellant after receiving the said amount executed a receipt vide Ex. P. 4. By the said repayment suit property was redeemed. The possession of the land was with the plaintiff but the respondents were not returning the original sale deed and therefore, the respondent-plaintiff filed the suit to be declared as owner and title holder of the suit property, mortgage loan stands redeemed and appellant has no right over the suit property.

3. The appellant filed its written statement denied the averments made in the plaint.

4. The trial Court after appreciating the evidence of Devlal (PW-1) Mansharam (PW-2), Nirpat (PW-3) and Kamta (PW-4) came to the conclusion that the respondent-plaintiff repaid the amount of mortgage vide receipt Ex.P4 and the document in question though in the form of sale deed was a simple mortgage. On the basis of the statement of the father of the appellant (Ex.P.3) recorded in a criminal case, came to the conclusion that the transaction was a mortgage and not a sale. The trial Court also considered the statement of appellant (DW-1) and Radhelal (DW-2) and held that the appellant on the basis of Ex.P.1 filed an application for mutation of his name in the revenue records which was rejected as objection was raised by the respondents and on the basis of oral evidence of Nirpat (PW-3) has held that the Ex. P.1 was a mortgage and not a sale deed. It is also held that the respondent plaintiff proved his possession over the land in question. The trial Court held that the plaintiff respondent is owner of an area of 41 RA of Survey No. 441 situated at Village Khiriya and suit property was mortgaged in the form of sale deed. The mortgage money was paid by the respondent plaintiff vide Ex. PA along with interest in time on 30th December, 1991 and the suit land was redeemed. With the above finding the suit of the respondent plaintiff was decreed by the trial Court.

5. In an appeal the Lower Appellate Court after appreciating the document Ex.P.1, Ex.P.2, Ex.P.3 and Ex.P.4 and after considering the statement of independent witnesses Nirpat (P.W. 3), attesting witness of Ex.P4 Mansharam (PW.2) and Kamta (PW. 4) came to the conclusion that the suit property was mortgaged in the form of sale deed, on 16.6.1989. Simultaneously the respondents executed an agreement on 16.6.1989 and as per the terms of agreement mortgage money was paid within a period of three years along with interest on 30.12.1991 and therefore, appellant had no right, title or interest over the suit property. The trial Court rightly decreed the suit for declaration. The Lower Appellate Court affirmed the finding recorded by the tria