48sa672-10.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 672 OF 2010 WITH CIVIL APPLICATION NO. 1806 OF 2010 IN S.A. NO. 672 OF 2010 1 Kuram Saleem Abdul Maner ... Appellants/ Applicants. Representated by his mother - Smt. Bismill w/o. Abdul Maner & Ors. V/s. 1 Shri Panda Tatya Jadhav, since deceased through heirs : 1.(a) Rama Panda Jadhav & Ors. ... Respondents. --- Mr. Umesh R. Mankapure, Advocate for the Appellants/Applicants. --- CORAM:- G.S. GODBOLE, J. DATED :- 14TH OCTOBER, 2011. P.C. : 1 Original Defendants in R.C.S. No.45 of 1984 have filed this Second Appeal. That suit was filed by the Respondent-Original Plaintiff in the Court of Civil Judge Junior Division, Jath at Jath for redemption of the document of conditional Sale executed on 28.6.1973 Exh. 36. The suit was decreed on 11.10.1991 after recording finding on the basis of the 48sa672-10.sxw 2 appreciation of evidence that the document was not an outright sale nor a Sale Deed with option to repurchase but was a mortgage of conditional sale as contemplated by section 58 (c) of the T.P. Act, 1982. Reg. Civil Appeal No. 500/1991 filed by the original Defendants has been dismissed by the learned Principal District Judge, Sangli on 8.7.2010 and hence, this Second Appeal is filed. 2 Mr. Mankapure submitted that the nomenclature of the document cannot be conclusive and/or factum relevant intention of the parties, but conduct of the parties subsequent to the execution of the document is also required to be considered. Mr. Mankapaure further argued that after execution of the document in 1973, no steps were taken by the original Plaintiff within two weeks as stipulated in the document and hence, according to him, the document was intended to operate as absolute sale. He also submitted that in the meantime, the consolidation scheme was implemented and the name of the original purchaser-in-title of the Appellant who was signatory to the document Exh. 36 was recorded as owner. According to Mr. Mankapure, considering the totality of the circumstances of the case, the document was an absolute Sale with a facility for re-conveyance and if such re-conveyance was executed 48sa672-10.sxw 3 within two weeks. I am unable to agree. I have perused the photocopy of Exh. 36. Not only in the title of the said document but also in the recitals it is clear that the intention of the parties was to create mortgage by conditional sale. The language of the document shows that the Marathi words synonymous with mortgage and conditional sale have been specifically used. Merely because the consolidation scheme was implemented and the name of the original purchaser-in-title of the Applicant was recorded as owner in the original records or in the consolidation scheme, the nature of the original document being the mortgage cannot change. It is well settled position of law that once a mortgage is always a mortgage. The Trial Court and the Appellate Court have independently assessed the entire material and documentary evidence on record and have reached to an independent conclusion that the document was a mortgage by conditional sale as provided by section 58(c) of the TP Act, 1982. 3 No question of law arises. the Second Appeal is dismissed. 4 In view of dismissal of the Second Appeal itself, the Civil Application No. 1806 of 2011 does not survive and the same is also dismissed. 48sa672-10.sxw 4 5 At this stage, on the oral request of Mr.Mankapure, Advocate for the Appellants, it is directed that the Decree for possession shall not be executed for a period of 12 weeks. [G. S. GODBOLE, J.]