1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.76 OF 2008 WITH CIVIL APPLICATION NO.204 OF 2008 Ranjit Vyankatrao Chavan & Ors. ..Appellants, V/s. Prakash Krishna Patil & Ors. ..Respondents. Mr. P.D. Dalvi for appellants. Mr. G.S. Hiranandani i/b. C.G. Gavnekar for respondents. CORAM : J.P.DEVADHAR, J. DATED : 9TH SEPTEMBER, 2009. P.C. :- 1. Heard learned counsel for the parties. The respondents had filed R.C.S. No.351 of 1996 in the Court of III Jt. Civil Judge, Kolhapur seeking injunction restraining the appellants from disturbing possession of the suit property which the respondents had purchased pursuant to the sale deed 24/5/1965. In the said suit, the appellants had filed a counter-claim to the effect that the instrument dated 24/5/1965 was only a mortgage deed and not a sale deed. By the judgment and order dated 29/3/2000 the trial Court decreed the suit and restrained the appellants or any persons on their behalf from disturbing and obstructing the possession of respondents over the suit property. The trial Court also dismissed the counter-claim filed by the appellants. 2. Being aggrieved by the said order, the appellants filed Regular Civil Appeal No.239/2000 before the District Judge, Kolhapur. By the impugned judgment and order dated 25/11/2004 the learned District Judge dismissed the 2 appeal. Being aggrieved by the aforesaid order, the present appeal second appeal is filed. 3. The grievance of the appellants is that the instrument dated 24/5/1965 contained a clause to the effect that in the event of the appellants paying a sum of Rs.5,000/- within the period of 5 years, they were entitled to get back the suit property and because of that clause the said document was liable to be treated as mortgage deed and not a sale deed. It is contended that although the option was not exercised within the stipulated period, the instrument continued to be a mortgage deed and the plaintiff was not entitled to the relief claimed in the suit. Since this aspect was not considered by the Courts below, it is contended that substantial question of law arise out of the order passed by the trial Court. 4. In my opinion, the concurrent findings given by the Courts below is that the sale under the instrument dated 24/5/1965 was a conditional sale with an option to the appellants to repurchase the property in question by paying an amount of Rs.5,000/- within the time stipulated therein. Admittedly, the appellants have not exercised the option and paid the amount within the stipulated time and seek repurchase of the suit property. In this view of the matter, the findings of the Courts below, that by efflux of time the conditional sale dated 24/5/1965 became absolute sale cannot be faulted. No substantial question of law arise out the impugned order. The appeal is, therefore, dismissed in limini with no order as to costs. 5. In view of the dismissal of the appeal, the Civil Application has become infructuous and the same is dismissed as such. (J.P. DEVADHAR, J.)