1994 PLP 1259 (CLC)

(2) Whether the parties effected a mortgage and the plaintiff only paid Rs.6,000 to the defendant? If so its effect? OPD. (3) Relief. Parties to the suit gave evidence in support of the above issues. On 13‑1‑1969, the trial Court decreed suit for possession of the house in favour of the plaintiff. It held that the transaction embodied in Exh. P.1 was an out and out sale of the property and agreement for re‑conveyance pleaded by the defendant was not established. The matter was taken in appeal by the defendant. On 31‑3‑1970, appeal was allowed by Additional District Judge, Gujrat who found that issues settled in the suit were defective and did not bring out the controversial points correctly. Consequently, fresh issues were framed by him and the suit was remanded for trial on them. The issues framed for the remanded trial were:‑‑ (1) Whether, the transaction in question was not a sale? OPD. (2) Whether, the transaction in question was a mortgage?. If so, what is its effect? OPD. (3) Whether, the parties had agreed that the plaintiff would reconvey the property in suit to the defendant on the payment of Rs.10,000, if so what is its effect? OPD. (4) Whether, possession of the property in suit was not delivered to the plaintiff? OPD. (5) What is the market value of the property in suit? OPD. (6) Whether, the suit is properly valued for the purposes of court‑fee and jurisdiction? (7) Relief. Upon remand, additional evidence was produced by the parties in support of the substituted issues. On 17‑1‑1981, the suit was again decreed in favour of the successors of the original deceased plaintiff. Findings on material issues regarding nature of the transaction evidenced by Exh. P. 1 and agreement for re‑conveyance of the property upon payment of Rs.10,000 were given against the defendant. It was found that the transaction was a completed sale of the properties and no agreement for their re‑conveyance was proved. On appeal, these findings were maintained by District Judge, Gujrat, on 20‑11‑1993. Thereupon, instant petition for revision of the impugned judgments and decrees of the lower Courts was presented in this Court. It was urged at the hearing that record was misread by the lower Courts for holding that the transaction in Exh. P. 1 was a completed sale. Alternatively, it was urged that an agreement for re‑conveyance of the property upon payment of Rs.10,000 was substantiated by evidence given in the suit. Both the contentions had little substance. As regards nature of transaction, Exh. P.1 was a repository of it. Execution of Exb. P.1 was not expressly denied in the written statement. In his statement recorded on 24‑10‑1967 in the trial Court the defendant admitted that he had sold the house in question to the plaintiff upon receipt of Rs.6,000 from him but a sum of Rs.10,000 as sale. price was inserted in the deed. He deposed that it was agreed between the parties that upon payment of Rs.10,000 registered deed shall be returned to him. Fazal Elahi D.W.1 also admitted that the defendant had sold the house to the plaintiff and had received Rs.6,000, whereas the bargain for sale was settled at Rs.10,

000. Muhammad Sadiq D.W.2 who was a marginal witness of Exh.P.l deposed that the plaintiff had paid Rs.6,000 to the defendant but a sum of Rs.10,000 was inserted in the deed. He also deposed that the plaintiff had agreed to re‑convey the house to the defendant. Defendant Muhammad Din again appeared as D.W3 in the witness‑box on 26‑i‑1968. He deposed that the house‑was mortgaged by him for the mortgage amount of Rs.6,000 but a sale deed was written at the instance of the plaintiff, who agreed that upon payment of Rs.10,000 it shall be returned to him. In his supplementary statement as D.W3, recorded on 18‑10‑1971, after some prevarications, he admitted his thumb‑impression on Exh. P. 1 but denied his appearance before the Sub Registrar. Ahmad Din plaintiff gave his evidence as P.W.3 and supported the sale of above two properties in his favour and payment of the sale price to Muhammad Din. P.W.1, a deed‑writer supported execution of Exh. P.

1. Manzoor Ahmad P.W. 2 gave evidence as a marginal witness of the sale‑deed Exh. P. 1 for proving its execution and payment of the sale price. Exh. P. 2 was the site plan of the house. From the evidence led at the trial, it was manifestly clear that the execution of Exh. P. 1 and its registration at the instance of defendant was unquestionable. The sale price fixed for the properties was Rs.10,

000. Rs.4,000 were stated to have been paid in advance and the balance of Rs.6,000 were paid before the Sub‑Registrar. First question regarding nature of transaction concluded between the parties in Exh. P. 1 presented not much difficulty. It had all the appearances of an out and out sale of the properties for payment of the sale price. It gave no indication of it being treated as a mortgage of properties. In all cases, where the question was whether a transaction embodied in a certain document amounted to an out and out sale or a mortgage, the true test was always the intention of the parties. If a permanent transfer of ownership rights was intended by them, the transaction would amount to a sale. This question was in every case one of fact to be determined on the contents of the document and the surrounding A circumstances. The document itself which was a complete repository of the terms agreed between the parties, in the light of surrounding circumstances, furnished sound criteria for judging the nature of transaction between the parties contained in it. An agreement for re‑conveyance upon repayment of Rs.10,000 and the time fixed for it was not contained in the document Exh. P.

1. On record, there was not sufficient evidence to dislodge the apparent character of Exh. P. 1 for its treatment as a transaction of mortgage between the parties. Furthermore, oral agreement pleading for re conveyance of the property transferred in Exh. P. 1 was not proved either. Parol evidence led in this behalf was unconvincing. If there was such a simultaneous agreement arrived at between the parties, there was no bar for reducing it in writing to furnish a proper proof of it in case of .a later dispute about it. Upon appraisal of oral evidence, the lower Courts negatived the presence of a collateral oral agreement for re‑conveyance of the property upon payment of Rs.10,

000. This being a finding of fact was not susceptible to a further review in revision. In my opinion, the conclusions arrived at in the impugned judgments were perfectly legal and correct. Therefore, there ought to be no interference with them. In result, civil revision is dismissed in limine. Original records shall be returned to the lower. Courts. AA/M‑1513/L Revision dismissed.