IMPORTANT POINT
Unless and until condition of transfer is not embodied in document which effects and purports to effect sale, transaction cannot be said to be a mortgage and it shall amount to a deed of sale only.

A.K. Shrivastava J.—The judgment passed in this appeal shall also govern the disposal of S.A. No. 97/2001 as there is an order dated 11.9.2012 in this appeal as well as in connected S.A. No. 97/2001 to hear both the appeals together. The plaintiff Parasram Dubey and defendant Santosh Kumar are common in both the appeals. The present appeal has arisen from the judgment and decree dismissing the suit of plaintiff for declaration that suit property has already been redeemed and in the alternative a decree of specific performance of contract be passed as well as for the cancellation of sale-deed which has been obtained by the defendants on the basis of fraud. The connected second appeal (S.A. No. 97/2001) has been filed against the judgment and decree passed by two Courts below decreeing the suit of plaintiff on the relationship of landlord and tenant for eviction under the Rent Control legislation namely M.P. Accommodation Control Act, 1961.

2. This is plaintiffs first appeal under Section 96, C.P.C. against the judgment and decree dated 22.11.1998 passed by learned Second Additional District Judge. Katni in Civil Suit No. 100A/1989 dismissing the suit of the plaintiff.

3. In brief the suit of the plaintiff as pleaded in the plaint is that the suit property. the description whereof has been mentioned in the plaint, was owned and possessed by one Guru Prasad and who had since died in the year 1966. After his death the suit property devolved in his heirs including plaintiff-appellant Parasram. The plaintiff was managing the property left by his father being Karta Khandan. Thereafter in the family settlement the suit property fell in his share and he was possessing the same. The plaintiff is carrying on the business of milk and in order to streamline his business, he was in need of money. as a result of which, from the defendants/respondents, who were well known earlier to him, he made a demand to give Rs. 20,000 towards loan however second defendant Radhika Prasad agreed to give loan to the plaintiff with a condition that the suit house mentioned as “A”, “B”, “C”. “D” in the plaint map be mortgaged in the name of his son Santosh Kumar (first defendant) and in lieu of interest which was agreed @ Rs.3.50 which comes to Rs.7,000 per month be paid by plaintiff to defendants towards rent. On accepting the aforesaid condition, the plaintiff obtained a sum of Rs.17,000 from second defendant through first defendant. The balance amount of loan Rs.3,000 was agreed to be paid at the time of execution of mortgage deed. Since the plaintiff was having full confidence upon defendant No.2 he executed a receipt in the presence of one Ramesh Pachori. But, instead of getting the document executed on stamp paper, the same was executed in the form of receipt by endorsing the back date 17.1.1986 on the said receipt.

4. It is the further case of plaintiff that on 28.7.1987 the defendant No.2 called the plaintiff to execute the mortgage deed in the Court where plaintiff told that he is not exclusive owner of the suit property but he will only mortgage the suit property. On this, defendant No.2 rest assured him that document of mortgage deed will be executed and another document of agreement of sale will also be executed. Since plaintiff was having full confidence upon second defendant, who without giving any opportunity to plaintiff to read the document and without reading the same on 29.7.1987 in presence of witnesses Santosh Saravgi and Ramesh Pachori executed the document. In this document there was a clause to get the suit property alienated in favour of plaintiff and this document of agreement of sale was made the basis of mortgage deed dated 28.7.1987. It was also agreed between the parties that after the loan amount will be paid alongwith interest. the suit property, which was mortgaged, will be redeemed.

5. It is the further case of plaintiff as pleaded in the plaint that in November, 1987 on being asked by the plaintiff to submit the acc