1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.115 OF 1994 Rangnath s/o Mahadu Lohar, deceased, through L.Rs. 1/1 Ravindra Rangnath Gadi Lohar, age: 38 years, Occ: Labour, At Post Tq.Dharangaon, Chopde Road, District Jalgaon. 1/2 Sumanbai Sitaram Popale, age: 5 years, Occ: Household, At Post Thokri, Tq.Thokri, District Khargaon (M.P.State) 1/3 Kamlabai Madhukar Gadilohar, age: 50 years, Occ: Household, R/o At Post Chopde Road, Tq.Dharangaon, District Jalgaon. 1/4 Ashabai Ramesh Kaladkar, age: 45 years, Occ:Housewife, R/o At post Sedurni, Tq.Soygoan, District Jalgaon. 1/5 Minabai Rangnath Gadi Lohar, age: 34 years, Occ: Housewife, R/o At Post Dharangaon, District Jalgaon. 1/6 Mandabai Rangnath Gadi Lohar, age: 70 years, Occ: Household, R/o At post Dharangaon, District Jalgaon. Appellants Versus 2 1 Raghuveerprasad s/o Ramprasad Pande (died), through L.Rs.: 1/1 Smt.Krishnabai w/o Raghuveerprasad Pande, age: 57 years, Occ: Household, R/o 15, L.I.G., Old Subhashnagar, Bhopal (M.P.) 1/2 Kailas s/o Raghuveerprasad Pande, (Dissmissed as against R.No.1/2 as per Court's order dated 30.04.2009). 1/3 Rajesh s/o Raghuveerprasad Pande, age: 37 years, Occ: Service, R/o 15, L.I.G., Old Subhashnagar, Bhopal (M.P.). Respondents Mr.S.S.Chaudhari, advocate for the appellants. Mr.A.H.Kasliwal, advocate for Respondents No.1/1 and 1/3. Appeal dismissed as against R.No.1/2 as per Court's order dated 30.04.2009. CORAM: R.M.BORDE, J. DATE : 23rd September, 2009. P.C.: 1 This is an appeal by original defendant raising exception to the concurrent judgments delivered by both the Courts below. 2 Respondent-plaintiff instituted Regular Civil Suit No.89 of 1984 claiming decree of redemption of mortgage and for possession of the suit property. According to the plaintiff, document in the nature of mortgage was executed in favour of defendant on 02.02.1962. As per the terms of document, property was given in possession of defendant for a period of five years on securing an amount of Rs.700/-. Delivery of possession was handed over to the defendant on the date of execution of the document. 3 Defendant was to use the property for the period of five years and in the event of failure of the plaintiff to repay the amount within stipulated period, ownership was agreed to be transferred to the defendant on completion of period of five years. According to the plaintiff, he approached the defendant and exhibited his willingness to repay the mortgage amount, however, defendant refused to accept same and hand over possession of the property back to the plaintiff. As such, plaintiff presented the suit claiming relief, as stated above. 3 Defendant resisted the suit by filing written statement. According to the defendant, the document executed on 02.02.1962 is a conditional sale deed. As the plaintiff has failed to repay amount of Rs.700/- within stipulated period, the plaintiff is not entitled to seek recovery of possession of suit property. The defendant has contended that there is immediate transfer of title in his favour in terms of the document. As such the document be construed as conditional sale. 4 The trial Court, after recording evidence of the parties, recorded a finding that the document in question is a mortgage by conditional sale as envisaged by Section 58C of the Transfer of Property Act. 5 The judgment and decree passed by the trial Court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal No. 200/1987, which came to be heard and disposed of by Additional District Judge, Jalgaon, who was pleased to dismiss same by judgment and order dated 19.01.1994. 6 I have perused the judgments recorded by both the Courts 4 below. The Courts below were justified in construing the document as mortgage by conditional sale. I have perused the document. There is recital contained in the document in respect of postponing vesting of title in defendants after expiry of period of five years, which itself is indicator to arrive at the conclusion that the document in question comes within the purview of Section 58C of the Transfer of Property Act. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa11594