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2006 (2) TMI 669 - SC - Indian LawsSuit for a declaration - res judicata - Whether in view of the admission made by respondent No.2 in Ext.2 to the effect that the parties understood the document to be a deed of Baibulbafa, learned court committed error of law in construing Ext. A without taking into consideration the admissions made by the parties - HELD THAT:- We have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents was entered into by and between the parties. In fact, the recitals made in the sale deed categorically show that the respondents expressed their intention to convey the property to the appellant herein as they had incurred debts by taking loans from various other creditors. We are not oblivious of the fact that the term 'Bai-bil-wafa' or 'Bye- bil-wuffa/wafa' is an Arabic term which may mean a mortgage or a condition sale but the said term is not synonymous to 'Bai-ul-wafa'. In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that the appellant was put in possession of the land, his name was also mutated. The question of determination of being a pure question of law, the principles of res judicata shall have no application. Therefore, the High Court, in our opinion committed a manifest error in interfering with the judgment and decree passed by the trial court as also the appellate court in exercise of its jurisdiction u/s 100 of the Civil Procedure Code. Thus, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed with cost. Counsel's fee quantified at ₹ 5,000/.
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