TMI Blog2012 (4) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court finding inter alia, the appellant did not execute the deed (Ex. P-2) with an intention to sell the suit property but was executed by him as a security of loan. (iii) On an appeal filed by the respondent No. 1/plaintiff, the First Appellate Court reversed the finding of the trial Court and decreed the plaintiff's suit for possession of suit property holding : the transaction was not a loan transaction but was a transaction of sale. This appeal was admitted for hearing by this Court on the following substantial question of law: Whether alleged Ex. P-1 is outright sale deed or document executed for security of loan? ( 3. ) Shri Ahmed Hussain, learned counsel appearing for the appellant would submit: the sale deed (Ex. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The same is not the case here. Here in the instant case, recital of sale-deed (Ex. P-1) clearly establishes the factum of sale, it is neither document of mortgage by conditional sale nor a document of mortgage with the condition of re-purchase, and the ratio of law laid down by the Supreme Court in the above case, is of no help to the appellant. ( 6. ) Therefore , the real question which arises for determination of this Court is whether the sale deed (Ex.P-1) is an outright sale or the transaction was loan transaction and the sale deed was executed by the appellant as a collateral security to the loan taken by him from the plaintiff. True, Section 92 of the Evidence Act does not preclude a party from showing that the writing is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entries in khasra Panchshala (Ex.P-3) in the matter of possession were also in favour of the respondent/plaintiff. Vide order dated 23-4-1982 (Ex. P-4), the revenue authorities declined to declare the sale transaction as loan transaction. As per statement of Rambilas (PW-4), he cultivated the suit land in the year 1977-79 on behalf of plaintiff Madanlal Jaiswal. The above evidence stands unrebutted. Appellant Sheikh Baboo (DW-1) in his examination-in-chief, paragraph 6 has stated when he approached the plaintiff to refund the amount then plaintiff told him, this year he has cultivated the land and after getting the crop, he will return the land to him . The above statement goes to show, plaintiff's possession over the suit land at ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
