IMPORTANT POINTS
(1) Type of mortgage depends upon terms of contract – Oral evidence of intention is not admissible in interpreting covenants of deed.
(2) Agreement to Sell – Plaintiff is not debarred from enforcing right to claim possession against defendant.

JUDGMENT

The appellant, who was the original defendant, had impugned the judgment and decree of the learned Civil Judge Junior Division, Jamner, passed in R.C.S. No.27 of 1982,, dated 26.07.1988 and of the learned District Judge-5, Jalgaon passed in R.C.A. No.256 of 1988, dated 30.06.2022.

2. The appellants would be referred to as the ‘defendants’, and respondents as the ‘plaintiffs’.

3. Both plaintiffs and defendants died and their legal representatives continued the suit. This appeal is a second round of litigation. Against the judgment and decree of the Trial Court, the first appeal bearing R.C.A. No.256 of 1988 was preferred. It was decided on 01.02.1993. Against the said judgment and decree of the First Appellate Court, Second Appeal No.325 of 1993 was preferred. It was decided on 09.09.2021. This Court had set aside the judgment and decree of the First Appellate Court passed in R.C.A. No.256 of 1988 dated 01.02.1993 and relegated the matter to the First Appellate Court for de novo consideration of the appeal with a direction to frame appropriate points for determination in compliance with Order XLI Rule 31 of the Civil Procedure Code and decide the matter on merits. In view of the order of this Court, the First Appellate Court framed in all 21 points for determination and passed the impugned judgment and decree on 30.06.2022.

4. This Court, by order dated 25.07.2023 (Coram: Arun R. Pednekar, J.), asked the learned counsel for the respondents how questions of law formulated by this Court by order dated 05.09.2019 in the earlier round of litigation between the parties as questions of law at nos. A, B and C would not arise for consideration. It has been further observed that the learned counsel submits that the same are not dealt with by the First Appellate Court on remand. It was directed to file a reply limited to that extent. The Court has perused the submissions of the learned counsel for the plaintiff as per the above order.

5. Both learned counsels agreed for final hearing at the admission stage. Hence, the appeal was admitted and heard finally by consent, as the original suit was filed in 1982. The following substantial questions of law have been formulated:—

(a) Whether the document in question about the filed survey no. 278/3 was a sale deed or deed of mortgage by conditional sale.

(b) Whether oral evidence would prevail over documentary evidence?

(c) Whether defendants/present appellants are entitled to specific performance of the field survey no.278/1?

(d) Whether there was a delay and laches in claiming the specific performance?

(e) Whether the defendant was ready and willing to perform his part of the contract?

6. The plaintiff had a case that he intended to purchase adjoining land bearing field Survey No. 278/1. However, he had no money. He knew that the defendant does money lending. Hence, he approached the defendant and asked for money. The defendant asked him to give something in writing or pledge something. He also asked for 2% interest per month on the loan amount. He executed the sale deeds of the field against the loan of Rs. 6000 and the house property against the loan of Rs. 3000 on 21.1.1971. The sale deeds were executed as security against the loan. It was agreed that the possession of the house would not be delivered to the defendant, but the possession of the agricultural field Survey No.278/3 would be delivered and the defendant would maintain the account of the income fetched from the field, and it would be appropriated against the loan amount and the interest. From the loan taken from the defendant, the plaintiff purchased field Survey No. 278/1 on 15.4.1971. Instead of producing the account, in May of 1974, the defendant started demanding the loan amount. The plaintiff had no money. The defendant took advantage of the situation, took possession of field Survey No. 278/1 and obtained an agreement to sell. He did not receive any earnest money. In 1975, the plaintiff could arrange for Rs