(Ranjan Gogoi and R. Banumathi, JJ.)
Ramesh Chand (D) Thr. Lrs. and Others ______________ Appellant(s);
v.
Nand Lal and Others _____________________________ Respondent(s).
Civil Appeal No(s). 566 of 2016, decided on April 24, 2018
The Order of the court was delivered by
Order
1. This appeal has been filed by the appellants against the judgment and order dated 25.10.2010 passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Civil) No. 16 of 2000.
2. The plaintiffs’ suit for redemption of mortgage of four properties was initially decreed by the learned trial Court. In appeal, the decree was partially reversed insofar as the two items of properties are concerned. The said two items are properties were the subject matter of sale agreements between the mortgagor and the mortgagee pursuant whereto on full payment of the agreed amount by the mortgagee to the mortgagor the mortgagee was allowed to continue to remain in possession under the sale agreements. It is in these circumstances that the First Appellate Court and the High Court took the view that the plaintiffs’ suit insofar as the redemption of the aforesaid two items of properties are concerned could not have been decreed in view of the provision of Section 53A of the Transfer of Property Act, 1882.
3. The contention of the plaintiff with regard to readiness and willingness on the part of the defendants to comply with the terms of the agreements was also negatived.
4. The plaintiffs’ suit for redemption in the face of the terms of the sale agreements insofar as the two items of properties are concerned, could not have been decreed in view of Section 53A of the Transfer of Property Act, 1882. The plaintiffs could have but did not not bring an action for declaration of title and recovery of possession on the basis of title. In such circumstances “the fault” on the part of the defendants to bring a suit for specific performance of the sale agreements to enable the transaction of agreement to sell to fructify into a valid sale cannot defeat their right under Section 53A of the Transfer of Property Act, 1882.
5. Insofar as the issue of readiness and willingness on the part of the defendants to comply with the terms of the sale agreements is concerned, as two Courts have decided the issue against the defendants on consideration of the evidence on record, we do not consider it appropriate to reopen the said question.
6. Consequently, we will have no occasion to interfere with the order of the High Court under challenge. The appeal, therefore, has to be dismissed which we accordingly do.
Civil Appeal No(s). 566/2016
Ramesh Chand (D) Thr. Lrs. and Ors _________________ Appellant(s)
v.
Nand Lal and Ors ________________________________ Respondent(s)
Date : 24-04-2018 This appeal was called on for hearing today.
(Before Ranjan Gogoi and R. Banumathi, JJ.)
For Appellant(s) Ms. Shobha, AOR
Mr. Satyam Jyoti Saikia, Adv.
Mr. sourav Roy, Adv.
For Respondent(s) Mr. A.N. Haskar, Sr. Adv.
Mr. Pavan Kumar, AOR
Mr. R.N. Pareek, Adv.
Mr. Sitwat Nabi, Adv.
Mr. Udyan, Adv.
UPON hearing the counsel the Court made the following
ORDER
7. The appeal is dismissed in terms of the signed order.
8. Consequently, pending application(s), if any, shall stand disposed of.
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