Prakash Krishna, J.:— This is defendants' first appeal against the judgment and decree dated 10th of April, 1990 passed in Suit No. 107 of 1986.

2. The present appeal arises out of a suit filed by the respondents for specific performance of an agreement dated 10th of May, 1985. The suit was instituted on the pleas, inter alia, that the plaintiff was the owner of the half share in agricultural plot No. 288 situate in village Urmura Kirar, Tehsil Sikohabad. He was bhumidhar with transferable right. On 10.5.1985 he executed a sale deed in favour of Smt. Jai Rani for a sum of Rs. 40,000 in respect of the land in suit. In the said sale deed it was agreed between the parties that if the plaintiff pays a sum of Rs. 40,000 within a period of one year, defendants shall reconvey the land in suit in favour of the plaintiff. The plaintiff has sought the specific performance of the said condition as his request to the defendants to execute the deed of reconveyance to the defendants yielded no result. It was further pleaded that the plaintiff has even tendered Rs. 40,000 to them and requested them to execute the deed of reconveyance but the defendants always avoided the execution of the sale deed on one pretext or the other. Notice dated 9th March, 1985 was given which was served on the defendants on 30.4.1985 Thereafter, a telegram was given by the plaintiff on 9.5.1986 stating that he has the ready money but the defendants were not prepared to execute the sale deed. The suit was contested by the defendants by filing a joint written statement. The execution of sale deed dated 10.5.1985 is admitted vide para 6 of the written statement with the rider that it was outright sale deed. In para 7 of the written statement only this much has been stated that the condition of return of the is illegal and ineffective. In para 9 thereof it was stated that the condition of reconveyance is not enforceable as the sale deed is an unilateral deed. By way of amendment para 14A was added and a plea that the suit is hit by Section 164 of U.P Act No. 1 of 1951 was added.

3. On the basis of the pleadings the trial court framed 8 issues. It has come to the conclusion that the condition of reconveyance in the sale deed is a valid condition, there is no defect in the plaint for want of compliance of Forms 47 and 48 of Schedule A of C.P.C The plaintiff was always ready and willing and is still ready and willing to get the sale deed executed in his favour. The suit is not barred by Sections 10 and 11 of the Transfer of Property Act. Condition in the sale deed is binding on the defendants and the suit is not barred by Section 164 of the Zamindari Abolition and Land Reforms Act.

4. The learned counsel for the appellants has challenged the findings on issues No. 8 and 7. The findings on other issues were not challenged by him.

5. Heard the counsel for the parties and perused the record. The learned counsel for the appellants has submitted the following two points in support of the appeal:

(1) The transaction between the parties was a loan transaction and as a matter of fact the possession was transferred for the purposes of securing the money advanced by way of loan and it is hit by Section 164 of U.P Zamindari Abolition and Land Reforms Act. Therefore, the condition of reconveyance is void. No decree for specific performance could have passed by the court below.

(2) The deed in question being unilateral document the said condition is not binding on him.

6. In support of his submission the learned counsel has placed reliance upon a judgment of the Supreme Court in the case of Bhaskar Waman Joshi v. Shrinarayan Ram Bilas Agrawal, AIR 1960 SC 301. It has been held therein the question whether by incorporation of condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of deed interpreted in the light of surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the decree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relationship of a mortgagor and the mortgagee, the price being charged on the conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is a price charged upon the conveyed, but the sale is subject to an obligation to retransfer within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The learned counsel when confronted with the written statement had to accept that there is no plea of any loan transaction between the parties. The relationship of creditor and debtor has not been pleaded. The defendant appellant has not come forward with the case that it was not a sale transaction but was a mortgage transaction. The only plea raised in the written statement in paras 6 and 7 thereof is that the sale deed in question dated 10.5.1985 is a complete outright sale deed and that the condition of reconveyance is illegal and ineffective and that the said condition cannot be in force being the sale deed an unilateral document. Parties cannot be permitted to travel beyond their pleadings. No amount of evidence can be looked into with respect to which there is no pleading. Apart from the fact that no such plea was set up in the written statement, there is no evidence nor material on record to support the said plea. The learned counsel on the basis of the statement of the plaintiff P.W 1 made an attempt to raise the plea of mortgage. The plaintiff in cross-examination has stated that he had taken a loan of Rs. 20,000 from the defendants and after adding Rs. 20,000 towards the interest account he owed Rs. 40,000. This single sentence should not be read out of the context. It is to be interpreted and understood in the backdrop of the case and the attending circumstances. In the very next sentence the plaintiff has stated that Rs. 5,000 was given to him at the time of the execution of the sale deed and Rs. 35,000 was given to him earlier. The defendant-appellant Nau Ratan D.W 1 in para 8 of his statement has stated that the talk of the sale deed took place at his home and Rs. 35,000 was given to the plaintiff at his residence in the presence of witnesses after two days of the talk. It was agreed upon that the sale deed would be executed after 8-9 days. On the date of sale deed Sobaran Singh, the appellant No. 1, had gone to attend his duties. His wife Smt. Jai Rani paid Rs. 25,000 on the date of the execution of the deed. She was examined as D.W 4. In para 2 of her cross-examination it was stated that she carried Rs. 10,000 on the date of the execution of deed and paid Rs. 5,000 to the plaintiff. Thus, from the statements of P.W 1, D.W 3 and D.W 4 it is clear that Rs. 35,000 was paid to the plaintiff as advance money. Rs. 5,000 was paid at the time of execution of the sale deed.

7. The parties are illiterate villagers. Their statements should be interpreted keeping in view the fact that they are not conversant with the legal terminologies. The payment of Rs. 40,000 as consideration at the time of the execution of deed is not in dispute. There being no case of loan transaction the above statement of the plaintiff cannot be read in evidence in absence of the pleadings. The defendant-appellants cannot be permitted to travel beyond their pleadings and base their case at the appellate stage on some stray sentences. In this connection reference was made by the learned counsel for the appellant to para 3 of the plaint. In para 3 of the plaint there is a reference of one sale agreement dated 16.6.1984 The said agreement dated 16.6.1984 has not been referred to by the learned counsel for the appellant nor it is on the record of the case. In the later part of the said paragraph the plaintiff has pleaded that the sale deed dated 10.5.1985 was executed for a consideration of Rs. 40,000. Thus, the payment of Rs. 40,000 as sale consideration is consistent with the plaintiffs case and it also finds corroboration from the statements of Nau Ratan D.W 1 and Smt. Jai Rani D.W 4, as noticed above. The defendants have examined four witnesses in all. Remarkably all the four witnesses including the defendant Nau Ratan and his wife Smt. Jai Rani D.W 4 have consistently stated that there was a talk of sale deed preceding the execution of the deed in question between the parties and Rs. 40,000 was given towards the sale consideration. There is no iota of evidence on record by the defendants' side that it was a loan transaction. Therefore, it is held that the deed in question is a sale deed and the defendants cannot be permitted at the appellate stage to argue for the first time that it was a deed of mortgage.

8. Then reliance was placed by the learned counsel upon Section 164 of U.P Zamindari Abolition and Land Reforms Act. The said section reads as follows:

“Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.”

9. Section 164 of the U.P Zamindari Abolition and Land Reforms Act deems the transaction to be sale at all times and for the purposes notwithstanding the provisions of Transfer of Property Act, which deems it to be a mortgage. The allegation in para 2 of the plaint that plaintiff has been Bhumidhar with the transferable rights has been specifically admitted in para 2 of the written statement. The Section 164 of the U.P Zamindari Abolition and Land Reforms Act says that transfer of any holding for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt etc. shall be deemed to be sale notwithstanding the provisions of the Transfer of Property Act. This provision runs counter to the argument of the learned counsel for the appellant that the transaction in question was a mortgage deed and was not a sale deed.

10. The transaction is deemed to be sale by reason of Section 164 of the aforesaid Act. It does not take away the plaintiffs right to sue for specific performance of the contract of sale, represented by the condition incorporated in the sale deed. The controversy is fully covered by a judgment of this Court given in the case of Son Pal v. Bitto Devi, 1979 (5) ALR 373. Therefore, the first submission of the learned counsel for the appellant has no merit and the finding of the trial court under issue No. 8 is confirmed.

11. POINT NO. 2: This point has been considered by the court below under issue No. 7. It was submitted by the learned counsel that the sale deed being a unilateral document, the condition of repurchase incorporated therein is not binding on the defendant-appellants. Elaborating his argument it was submitted that the defendant-appellants were not present at the time of the sale deed and on their behalf Smt. Jai Rani was present. Reliance was placed upon the statements of two witnesses who were examined as D.W 2 and D.W 3 namely Kishan Chand and Amar Singh. Indisputably the said sale deed dated 10.5.1985 incorporating the condition of reconveyance is a registered document. The defendants are its beneficiary under Section 3 of the Transfer of Property Act, it has been stated that a person is said to have a notice of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation 1 says that any transaction relating to immovables effected by a registered instrument it shall be deemed that any person acquiring such property to have notice of such Instrument.

12. The appellants cannot accept the instrument namely sale deed in question partially. They are bound by the obligations arising from the said sale deed, to execute the deed of reconveyance. The only explanation given by the appellants is that they omitted to read the sale deed. The mere omission to make inquiries is not sufficient. The oral evidence of the attesting witnesses is not admissible under Sections 91 and 92 of the Indian Evidence Act. No oral evidence can be led in order to contradict, vary or subtract a document. In the similar circumstances this Court in the case of Son Pal (supra) held that a condition in the sale deed incorporating the agreement of reconveyance is binding on the vendees, notwithstanding the fact that document was executed only by the vendor.

13. The sale deed containing the clause of conveyance is a registered document. The clear pleading of the plaintiff is that he sold the property with a condition of repurchase. Burden of proof cannot be cast on the plaintiff to prove that the recitals in the document are true.

14. The party who wants to prove that the recitals are untrue must bear the burden to prove it. (See Pawan Kumar Gupta v. Rochiram Nagdeo, 1999 (3) AWC 1793 (SC) : (1999) 4 SCC 243 : AIR 1999 SC 1823).

15. In view of the above there is no merit in the appeal. The appeal is dismissed with costs.