JUDGMENT N.K. Mehrotra, J.
1. This is second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.8.1983, passed by the Special Judge, Lakhimpur Kheri allowing the plaintiff-respondents' appeal preferred against the judgment and decree dated 21.8.1983 dismissing the plaintiff-respondents' suit for possession.
2. I have heard Shri Awadhesh Kumar, the learned counsel for the defendant-appellants and Shri Mohd. Arif Khan, the learned counsel for the plaintiff-respondents on the substantial questions of law formulated in the memo of the appeal.
3. It appears that the plaintiff filed a suit for possession of the disputed house alongwith a decree of damage at the rate of Rs. 30 per month on the basis of his title. The case of the plaintiff in brief was that the disputed house was jointly owned by him and his brothers Shamshul Islam and Kutubul Islam and they had jointly executed a sale deed dated 31.1.1961 for a consideration of Rs. 600 in favour of Prem Prakash. Subsequently, Prem Prakash re-transferred the house for a consideration of Rs. 600 by means of a registered sale-deed dated 3.2.1964 in favour of the plaintiff and since then the plaintiff was owner and in possession of the disputed house which was detailed in the plaint. Both the defendants were sons of the plaintiff's real brother Shamshul Islam and these defendants about three years ago had taken this house as a licensee from the plaintiff under the assurance that they would search out some other house and would vacate it. The defendants did not vacate it for a period of one year on different pretexts and lastly, they refused to vacate it. Earlier, the defendant No. 2 was residing at Barabanki and was carrying on business of repairs of radios. The defendant No. 1 was residing at the place of Kamal Mustafa in the city of Lakhimpur. The defendants had always been in possession as licensee and at last the plaintiff terminated the licence by means of a notice dated 28.7.1980 and it is also alleged that there was a kothari situated towards south-east corner of his house, which was in the plaintiff's possession and that kothari had also been forcibly and unlawfully taken by the defendants about one year ago.
4. The defendants contested the suit on the ground that the disputed house belonged to Kudaratullah, the father of the plaintiff and grandfather of the defendants. Kudaratullah owned two houses adjoining with each other including the disputed house and another house was adjoining towards west of the disputed house in which the plaintiff was residing and had illegally claimed himself to be the owner of this western house in which the defendants were also co-sharers. After the death of Kudaratullah, all of his three sons namely; Kutbul Islam, Shamshul Islam and Sirazul Rehman, the plaintiff had jointly owned the property and in view of some necessity for money this house was mortgaged in 1961 by all the three brothers co-sharers, but Prem Prakash creditors agreed to advance money on the condition that he would get executed a mortgage-deed from all these three brothers and one separate agreement to re-purchase would also be executed by Prem Prakash to be re-sold for Rs. 600. These conditions had to be conceded by the plaintiff and both of his brothers and out and out sale deed was executed in favour of Prem Prakash, although it was to be executed in the form of mortgage-deed with a condition to re-purchase. Thus, this document executed on 31.10.1961 was mortgage deed and the disputed house was never sold and the intentions of the parties were to re-purchase in the same amount by all the three vendors. Prem Prakash was never delivered possession of this house and the defendants alongwith their father Shamshul Islam had been residing in this house and after the death of their father, the defendants were in possession of the house. The amount of Rs. 600 debt was repaid to Prem Prakash by the plaintiff in 1964 and the property was redeemed from the mortgage-deed and the sale deed was got executed in accordance with the agreement to repurchase by the alleged mortgagor. Shamshul Islam, lather of the defendants, alone had paid the consideration of Rs. 600 and purchased the stamp in his name in the presence of the plaintiff. Shamshul Islam had a great confidence upon the plaintiff and did not know Hindi language. As such the plaintiff cunningly in collusion with the scribe got executed the deed of repurchase in his own name and Shamshul Islam could not know about it at that time. Shamshul Islam expired in 1977 and thereafter, also the defendants continued to reside in this house.
5. Following issues were framed by the learned trial court :
"(1) Whether the plaintiff is the sole owner of the disputed house and he has any right to dispossess the defendants from the disputed house?
(2) Whether the suit is undervalued and the trial court has jurisdiction to decide the suit?
(3) Whether the defendants were given the disputed house on licence as alleged in para 2 of the plaint?
(4) Whether the suit is time-barred?
(5) To what relief, the plaintiff is entitled?
6. The learned Munsif held that the plaintiff is not the sole owner of the disputed house and was not entitled to dispossess the defendants. It was also held that the plaintiff has failed to prove that the defendants were residing as licensee in this house. It was held that the suit was not barred by limitation but in view of other findings, the suit was dismissed.
7. Aggrieved by the impugned judgment of the learned Munsif, the plaintiff preferred the first civil appeal.
8. The first civil appeal has been allowed and the suit alongwith recovery of damage at the rate of Rs. 30 was decreed.
9. It is against the judgment of the first appellate court; the defendant-appellants have preferred this second appeal.
10. Following substantial questions of law were formulated at the time of admission of appeal on 29.9.1983 :
"(1) Whether after holding that the defendant-appellants were not the licensees of the plaintiff and were not in possession of the same on the basis of the alleged licence, the view of law taken by the learned lower appellate court that the possession of the defendants would not be adverse could at all be said to be correct?
(2) Whether the plaintiff failed to establish the theory of licence, he was not entitled for a decree for possession even though the defendants were coming down in possession to the knowledge of the plaintiff since before the execution of the alleged sale deed and continued to remain as such even after the execution of the alleged sale deed and thus whatever rights of the plaintiff had extinguished by remaining out of possession for more than 12 years before the execution of the sale deed?
(3) Whether the plaintiff having failed to establish his title was he entitled for a decree for possession also for damages for use and occupation when the defendants have not been termed as tresspassers by the learned lower appellate court? and their permissive possession has not been accepted?
(4) Whether the judgment of the learned lower appellate court is vitiated, as he has not recorded any categorical finding with respect to the nature of possession of the defendants, in the absence of which the decree for possession could not have been passed?
(5) Whether the admission of the plaintiff's contention in application dated 13.4.1964 (paper No. 14-Ca) moved before the Municipal Board, Lakhimpur Kheri, about the mortgage of the house in question, the mortgage by all the three brothers on 31.1.1961 could have been ignored to the detriment of the defendants when the theory of the mortgage in its entirety was refuted by the plaintiff and he tried to conceal his own admission?
(6) Whether in the absence of the executant of the sale deed, Prem Prakash and also by the marginal witnesses Maqbool Ahmad, who were alive, the sale deed could any title to be said to have been proved and would give the plaintiff-appellant when the signatures of another marginal witness Shamshul Islam were specifically denied by the defendants and so steps were taken to get those signatures compared with the specimen signatures of Shamshul Islam, which were available on the original deed of the year 1961 (paper No. Ka-1/11)?
(7) Whether in view of the fact that the document was intended to be the redemption deed and not the sale deed, which might have been executed in the name of only one brother, it would not divest the rights of all other brothers and would not make the plaintiff as exclusive owner of the house in question?"
11. At the time of hearing of this second appeal, the only point which has been argued by the learned counsel for" the appellants is that the document executed on 31.1.1961 was a mortgage deed and it was not an outright sale. The case of the plaintiff-respondents is that it was an outright sale while the case of the defendant-appellants is that it was an mortgage-deed with condition to repurchase as defined under Section 58(c) of Transfer of Property Act, 1882. Section 58(c) of Transfer of Property Act, 1882, is as follows :
"58 (c) Mortgage by conditional sale.--Where the mortgagor ostensibly sells the mortgaged property--
12. The case of both the parties before me is that two documents were executed at the same time but the lower court's record speaks that there is only one document, which is dated 31.1.1961. The another document of repurchase has not been filed by either party but the plaintiff admits that there was some other document in which there was a condition of repurchase.
13. In view of the aforesaid provisions under Section 58(c) of Transfer of Property Act, 1882, it is clear that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale. From a perusal of the document dated 31.1.1961, it is quite clear that no such condition is embodied in the document, which is a sale-deed. The learned first appellate court has also taken the same view that the document dated 31.1.1961 is not a mortgage-deed. The learned counsel for the plaintiff-respondents has referred a decision of this Court in Masuryadin and Ors. v. Special Judge (Economic Offences) Allahabad and Ors., 1999 (3) AWC 2491 : 1999 (17) LCD 1264 in which it was held by this Court that a transaction in which the stipulation for reconveyance is contained in a separate document cannot be a mortgage of any kind.
14. The learned counsel for the plaintiff-respondents has also referred a decision of the Apex Court in Shyam Singh v. Daryao Singh, in which it was held that as a sale and agreement of repurchase are contained in two separate documents, although contemporaneously executed, the transaction cannot be treated to be a 'mortgage' as defined in Section 58(c) read with proviso thereunder of the Transfer of Property Act but it seems to be a transaction akin to a 'mortgage'. In the instant case the learned first appellate court has recorded a finding that an agreement to repurchase was also executed on 31.1.1961 does not find support by any documentary evidence. The learned counsel for the defendant-appellants has vehemently argued that on 13.4.1964, the plaintiff applied for mutation of the house to the Chairman, Municipal Board, Lakhimpur Kheri in which he admitted that in the year 1961 a conditional mortgage-deed was executed and after the expiry of terms of conditional mortgage, he had purchased the house on 31.1.1964. I find that this application which has not been put to the plaintiff is of no evidentiary value to interpret the nature of the transaction because it is a subsequent conduct of the parties. No doubt, the surrounding circumstance can be taken into consideration for interpreting a document but the subsequent conduct and the statement of either of the party will not be relevant for the purpose of deciding the nature of transaction.
15. In view of the aforesaid legal position, I do not agree with the contention raised by the learned counsel for the defendant-appellants. Therefore, the substantial question of law No. 7 formulated in this appeal cannot be decided in favour of the defendant-appellants because of the simple reason that the document deed dated 31.1.1961 is not a mortgage deed with condition to repurchase but it is an outright sale.
16. Admittedly, a sale-deed has been executed by Prem Prakash in favour of the plaintiff all alone in the year 1964 in which the father of the defendants was a marginal witness. Since the document dated 31.1.1961 was not a mortgage deed, Prem Prakash was the absolute owner of the disputed house and he had every right to transfer the disputed house in favour of the plaintiff by the sale deed dated 3.2.1964. It is not a case of redemption of a mortgage deed by one of the mortgagor. It is a case of purchase from the absolute owner. Therefore, all the rights vested with him have been transferred by Prem Prakash in favour of the plaintiff on 3.2.1964 by executing the sale-deed.
17. The learned counsel for the defendant-appellants has not argued anything on substantial questions of law Nos. 1 to 6 formulated in the memo of the appeal but at the same time I have examined myself all these substantial questions of law relating to the issue of plea of adverse possession raised by the defendant-appellants. A perusal of the written statement of the defendants goes to show that there was no averment in the written statement on the plea of perfection of title by adverse possession and no issue was framed to this effect. The case of the plaintiff was that the defendants were residing in the disputed house with his brothers. The first appellate court found that the plea of licence could not be proved but the first appellate court has decreed the suit on strength of title in favour of the plaintiff on the basis of the sale deed dated 3.2.1964 executed by Prem Prakash in favour of the plaintiff. The case of the defendants in the written statement was that the disputed house was the ancestral property and there has been no partition in the family. There were two houses of the time of their grandfather. One of the house was adjoining house in the west of the disputed house in which the plaintiff was residing exclusively and the defendants had also their share in the house which was in exclusive possession of the plaintiff being ancestral property. Therefore, whatever the possession of the disputed house was being alleged by the defendants, it was on the strength of their own right as successor of Kudaratullah, their grandfather. They have never said that they were unauthorised occupants and they were residing continuously uninterrupted by the plaintiff for a period of more than 12 years and therefore, the possession was hostile against the plaintiff. In the absence of any such case, the substantial questions of law formulated at the time of admission of this appeal cannot be said to be a substantial questions of law in the absence of any pleadings.
18. I find that the plaintiff is a rightful owner on the basis of the sale deed dated 3.2.1964 and his suit has been rightly decreed by the first appellate court on the strength of his title and it is not relevant that the first appellate court has recorded a finding that the plaintiff has not been able to establish the licence in favour of the defendants.
19. No other substantial question of law has been raised or pressed by the defendant-appellants.
20. In view of the above, the second appeal is dismissed with costs to the plaintiff-respondents.