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17-SA 340-2020.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 340 OF 2020

Abhijeet Narayan Jamdade & Ors.

..Appellants

V/s.

Suryakant Nathu Pharande

..Respondent

Mr. Pradeep J. Thorat, Advocate for the Appellants.

CORAM: NITIN W. SAMBRE, J.

DATE : FEBRUARY 10, 2020.

P.C.:-

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This second appeal is by the original defendant in Regular Civil

Suit No.9 of 2012 which was initiated by the Respondent/Plaintiff for

redemption and recovery of possession.

2.

Exh.38 and 39 are the mortgage by conditional sale wherein it

is claimed by the plaintiff that the land in question came to be mortgaged

for a sum of Rs.13,000/- which will be repaid in between period of 7 to

10 years from the date of execution of mortgage, and as such reverse sale

deed will be executed.

3.

The Trial Court vide its judgment and decree dated February

15, 2016, decreed the suit which was confirmed in Regular Civil Appeal

No.225 of 2017 preferred at the behest of the appellant as such this

second appeal.

Purti Parab

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17-SA 340-2020.doc

4.

Mr. Thorat, learned counsel for the appellants would urge that

the documents at Exh.38 and 39 are the documents which are to be

inferred as an absolute sale deed transferring title in favour of the

appellant. So as to substantiate his claim he would draw support from the

very recitals of Exh.38 and 39. Relying on the judgment of the Hon’

ble

Apex Court in the matter of Vanchalabai Raghunath Ithape Vs. Shankarrao

Baburao Bhilare reported in (2013) 7 Supreme Court Cases 173,

Mr.Thorat would urge that the intention of the parties could be gathered

from the language used in the deed. As such according to him, since the

respondent has failed to repay the amount of loan of Rs.13,000/- within a

period of 7 to 10 years from the date of execution of mortgage, the

appellant becomes absolute owner and that being so the courts below

have committed an error of law in decreeing the suit. Learned counsel

would also urge that the two cause of actions were sought to be agitated

in a single suit and that being so the suit was not maintainable. In

addition, the submissions are apart from the mortgager the other

necessary parties to the suit, six sisters who have succeeded to the interest

of mother after her death were not impleded in the suit in question. That

being so the judgment and decree passed by both the courts below are not

sustainable.

Purti Parab

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17-SA 340-2020.doc

5.

With the assistance of learned counsel, I have perused the

judgment delivered by both the courts below and also appreciated the

recitals of documents at Exh.38 and 39. The documents Exh.38 and 39 in

categorical terms provide for the acceptance of an amount of Rs.13,000/-

and execution of mortgage by conditional sale passing over possession in

favour of the appellant, repayment of amount of Rs.13,000/- within a

period of 7 to 10 years and getting the suit property released from the

clutches of mortgage.

6.

In the light of rival claims before the Trial Court, the issues

were framed at Exh.32 which reads thus ;

1. Whether Suit is bad for non-joinder of necessary party ?

2. Whether the suit is maintainable in this form ?

3. What is the nature of the transaction between the Plaintiff

and Defendants with respect of the suit property ?

4. Is the Plaintiff entitled to get the suit property redeem ?

5. Is the Plaintiff entitled to get the possession of the suit

property ?

6. Whether suit is in limitation ?

7. Whether the Plaintiff is entitled for past mense profit as

claim ? If yes ? At what rate ?

8. What Decree and Order ?

Purti Parab

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7.

Apart from the Respondent/Plaintiff examining himself at

Exh.37, he has examined other witnesses Ajit Jaikar (P.W. 2) at Exh.59,

Krushnakant Nevase (P.W. 3) at Exh.62, Yashwant Shinde (P.W. 4) at

Exh.64 whereas the Appellants/Defendants examined Power of Attorney

holder of Defendant Nos.1 and 2 namely Shankar Jamdade at E