[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original defendant to quash and set aside the impugned judgment and decree dated 26.12.1985 passed by the learned trial Court – learned Civil Judge (S.D.), Petlad in Regular Civil Suit No.168 of 1979 as well as the impugned judgment and order dated 31.12.1991 passed by the learned Appellate Court – learned 3rd Extra Assistant Judge, Nadiad in Regular Civil Appeal No.60 of 1987 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit for redemption of the mortgage document at Exh.47. [2.0] That the respondent herein – original plaintiff instituted Regular Civil Suit No.168 of 1979 against the appellants herein – original defendants in the Court of learned Civil Judge (S.D.), Petlad for a decree for redemption of the mortgage at Exh.47. It was the case on behalf of the plaintiff that in the document at Exh.47, it has been specifically mentioned that the suit property was mortgaged conditionally with a condition that if within five years the amount of Rs.500 is returned by the mortgagor, the mortgagee has to reconvey the property. It was the case on behalf of the plaintiff that though the deceased father – mortgagor was ready and willing to redeem the mortgage on payment of Rs.500/, the defendants were not accepting the same and giving false promises and therefore, a notice was served upon the defendant on 26.04.1979 and despite the same the mortgage was not redeemed and therefore, the plaintiff instituted the aforesaid suit.
[2.1] The suit was resisted by the defendants by filing written statement at Exh.12 submitting that the document at Exh.47 is not a document for mortgage with condition but it was a document for conditional sale and therefore, the plaintiff is not entitled to relief as prayed for. That the learned trial Court framed the issues. Both the sides led evidence documentary as well as oral and on interpretation of document at Exh.47, the learned trial Court held that the said document is a mortgage with conditional sale and therefore, passed a decree for redemption of the mortgage by judgment and decree dated 26.12.1985.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 26.12.1985 passed by the learned trial Court in Regular Civil Suit No.168 of 1979, the appellants herein – original defendant preferred Regular Civil Appeal No.60 of 1987 before the learned Appellate Court and the learned Appellate Court – learned Extra Assistant Judge, Kheda by impugned judgment and order dated 31.01.2012 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit for redemption of mortgage.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order/decree passed by both the Courts below, the appellants herein – original defendants has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] At the outset it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial questions of law for determination of the present Second Appeal.
1. Whether in the facts and circumstances of the case, the Courts below committed an error of law in interpreting the documents (Exh.47) as mortgage by conditional sale instead of out and out sale?
2. Whether in the facts and circumstances of the case the Courts below committed an error of law in not treating the appellant as tenant after holding that he had not become the owner of the suit property?
[4.0] Shri R.J. Oza, learned counsel appearing on behalf of the appellant – original defendant has vehemently submitted that both the Courts below have materially erred in holding the transaction as mortgage by conditional sale. It is submitted that as such both the Courts below have materially erred in not properly interpreting the document Exh.47 and consequently materially erred in holding the said document as a document for mortgage by conditional sale. It is further submitted that from the averments in the document at Exh.47 when the property was sold for a sale consideration of Rs.500/ with all rights in favour of the person in whose favour the said document was executed, the said document ought to have been considered as out and out sale. It is submitted that at the most it could have been stated that the said document was a document for conditional sale with a right in favour of the mortgagor to purchase the said land within five years. It is submitted that even there was no relationship of debtor and creditor between the parties and therefore, both the Courts below have materially erred in holding the document Exh.47 as mortgage by conditional sale.
[4.1] It is submitted by Shri Oza, learned counsel appearing on behalf of the appellant that even at the relevant time father of the appellant was cultivating the land as a tenant (Ganotiya) i.e. prior to the execution of the document at Exh.47 and therefore, even on redemption of mortgage, the right of the appellant's father and on his death of the appellant herein would continue as a tenant and therefore, even if the mortgage is redeemed, in that case also, no decree for possession could have been passed. Therefore, it is submitted that both the Courts below have materially erred in passing the decree for possession even considering the document as a document for mortgage by conditional sale. Making above submissions, it is requested to allow the present Second Appeal.
[5.0] Present Second Appeal is opposed by Shri H.M. Parikh, learned advocate appearing on behalf of the respondents herein – original plaintiffs. He has relied upon the decision of the Full Bench of this Court in the case of Kantilal M. Kadia vs. Somabhai Dahyabhai Kadia reported in 2003 (1) GLH 524 as well as unreported decision of this Court in Second Appeal No.160 of 1985 dated 15.06.2012 and relying upon the same and considering the conditions stipulated in the document Exh.47, it is submitted that both the Courts below have not committed any error and/or illegality in interpreting the document Exh.47 as a mortgage by conditional sale and consequently the learned trial Court has rightly passed the decree for redemption of the mortgage, which is rightly confirmed by the learned Appellate Court.
[5.1] Now, so far as the contention on behalf of the appellant that as the father of the appellant was cultivating the land as a tenant/ganotiya prior to execution of document at Exh.47 and therefore, even on redemption of the mortgage the right of the appellant's father and on his death right of the appellant to continue with the possession would continue and therefore, no decree for possession could have been passed is concerned, it is submitted by Shri Parikh, learned advocate appearing on behalf of the original plaintiff that as such the said issue with respect to tenancy right of the father was concluded against him by the Mamlatdar by passing the order under the provisions of the Bombay Tenancy Act and rejecting the claim of the appellant's father under the Bombay Tenancy Act and the order passed by the Mamlatdar has attained finality. It is submitted that even initially the issue Nos.5 and 7 were framed by the learned trial Court that whether the defendant has proved that he was tenant of the suit land in question were framed by the learned trial Court, however, subsequently, considering the earlier decision of the Mamlatdar passed under the Bombay Tenancy Act rejecting the claim of the appellant's father under the Bombay Tenancy Act and the said order has attained finality, the learned trial Court passed the order below Exh.15 to delete the aforesaid issues and even the said order has also attained finality. Therefore, it is submitted that when the father of the appellant/appellant was not held to be tenant by the Mamlatdar under the Bombay Tenancy Act and the said order has attained finality, it is not open for the appellant now to reagitate the same again. Therefore, it is submitted that when the father of the appellant/appellant was not considered to be the tenant / ganotiya under the provisions of the Bombay Tenancy Act, both the Courts below have committed any error and/or illegality in passing the decree for possession of redemption of mortgage. Making above submissions, it is requested to dismiss the present Second Appeal.
[6.0] Heard learned advocates appearing for respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as the evidence on record from the Record & Proceedings received from the learned trial Court.
[6.1] That the original plaintiff instituted a suit for redemption of the mortgage document at Exh.47 and for recovery of the possession. It was the case on behalf of the defendant that the document Exh.47 is a document for out and out sale and is not a document of mortgage by conditional sale. Both the Courts below have held the document at Exh.47 as mortgage of conditional sale on interpreting the document Exh.47 and consequently has passed the decree for redemption of mortgage as well as decree for possession. Therefore, the short question which is posed for consideration of this Court is whether the document Exh.47 can be said to be a document of mortgage by conditional sale or the document of out and out sale. For that the relevant averments and condition in the document at Exh.47 is required to be considered. It is true that in the document it is stated that the suit property was sold for a consideration of Rs.500, however, in the said document it is also specifically mentioned that if the mortgagor returns the amount of Rs.500/ within a period of five years, the mortgagee has to reconvey the property and the person in whose favour the document is executed has to reconvey the property. Identical question came to be considered by the Full Bench of this Court in the case of Kantilal M. Kadia (Supra) and on interpreting the similar document with similar condition, it has been held by the Full Bench that a document is of mortgage by conditional sale. Considering the aforesaid Full Bench decision of this Court, it cannot be said that Courts below have misinterpreted the document at Exh.47 considering the document as mortgage by conditional sale and consequently no illegality has been committed by both the Courts below in decreeing the suit and passing the decree for redemption of the mortgage.
[6.2] Now, so far as the contention on behalf of the appellant that as father of the appellant – original defendant was cultivating the suit land as a tenant/ganotiya much prior to execution of the document at Exh.47 and atleast on the day on which the said document was executed and therefore, even if the document is considered to be a document of mortgage by conditional sale, in that case also, on redemption of the mortgage no decree for possession could have been passed as a right of the father of the appellants as a tenant/ganotiya would continue. Now, so far as the aforesaid is concerned, it is to be noted that as such the claim of the father of the appellant as a tenant/ganotiya under the provisions of the Bombay Tenancy Act came to be determined by the competent authority – Mamlatdar and the Mamlatdar rejected the claim of the father of the appellant as tenant/ganotiya of the suit land. It is not in dispute that the said order passed by the Mamlatdar has attained finality. It is to be noted that as such initially the learned trial Court framed the issues at Exhs.5 & 7 that whether the defendant was the tenant of the suit land or not, however, subsequently, by passing the order below Exh.15 and as the issue with respect to tenancy right of the father of the appellant was concluded by the Mamlatdar earlier, the learned trial Court passed an order below Exh.15 deleting issue Nos.5 and 7 and the said order has also attained finality. Thus, as such the father of the appellant was not held to be the tenant of the suit land. Under the circumstances, no illegality has been committed by both the Courts below in passing the decree for possession on passing the decree for redemption of the mortgage.
[7.0] In view of the above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
Sd/ (M.R. Shah, J.) menon