D.P. Wadhwa JUDGMENT
Saiyed Saghir Ahmad, J.
1. Leave granted.
2. Vidhyadhar, the appellant before us, who shall hereinafter be referred to as plaintiff, had instituted a suit against the respondents, who shall hereinafter be referred to as defendant Nos. 1 and 2 respectively, for redemption of the mortgage by conditional sale or in the alternative for a decree for specific performance of the contract for repurchase which was decreed by the Trial Court on 29.4.1975. The decree was upheld by the Lower Appellate Court by its judgment dated 28.9.1976 but the High Court, by the impugned judgment dated 3.5.1991, set aside both the judgments and passed a unique order to which a reference shall be made presently in this judgment. The plaintiff is in appeal before us.
3. The property in dispute is 4.04 acres of land of survey plot No. 15 of Kasba Amdapur, District Buldana. The whole area of survey plot No. 15 is 16.09 acres and except the land in dispute, namely, an area of 4.04 acres, the entire land is in possession of the plaintiff. Defendant No. 2 was the owner of the whole Plot No. 15. On 24th of March, 1971, he executed a document styled as "Kararkharedi" in favour of defendant No. 1 for a sum of Rs. 1500 and delivered possession thereof to the latter. There was a stipulation in the document that if the entire amount of Rs. 1500 was returned to defendant No. 1 before 15th of March, 1973, the property would be given back to defendant No. 2.
4. This land was subsequently transferred by defendant No. 2 in favour of the plaintiff for a sum of Rs. 5,000 by a registered sale deed dated 19.6.1973. After having obtained the sale deed, the plaintiff filed the aforesaid suit in which it was given out that defendant No. 2 had offered the entire amount to defendant No. 1 but the latter did not accept the amount and, therefore, defendant No. 2 had to send it by money order on 7.6.1973 which was refused by defendant No. 1. A notice, dated 5.6.1973, had also been sent by defendant No. 2 to defendant No. 1. It was pleaded that since the document, executed by defendant No. 2 in favour of defendant No. 1, was a mortgage by conditional sale, the property was liable to be redeemed. It was also pleaded in the alternative that if it was held by the Court that the document did not create a mortgage but was an out and out sale, the plaintiff as transferee of defendant No. 2, was entitled to a decree for reconveyance of the property as defendant No. 2 had already offered the entire amount of sale consideration to defendant No. 1 which, the latter, had refused and which amount the plaintiff was still prepared to offer to defendant No. 1 and was also otherwise ready and willing to perform his part of the contract.
5. Defendant No. 2 admitted the whole claim of the plaintiff by filing a one-line written statement in the trial court. But defendant No. 1 contested the suit and pleaded that the document in his favour was not a mortgage by conditional sale but was an out and out sale and since the amount of consideration had not been tendered within the time stipulated therein, the plaintiff could not claim reconveyance of the property in question. The Trial Court framed the following issues:
1. Does the plaintiff prove that the defendant No. 2 mortgaged the suit field with the defendant No. 1 for Rs. 1500 on 24.3.71?
2. ........