1 sa177.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 177 OF 2011 WITH CIVIL APPLICATION NO. 752 OF 2011 IN SECOND APPEAL NO. 177 OF 2011 Shri Dattu Laxman Gaikwad since deceased through his Lrs. 1A) Shri Anandrao Dattu Gaikwad & Anr. ....Appellants. Vs. Shri Eknath Rajaram Gaikwad. ....Respondent. Mr. P.B. Shah, Advocate for Appellants. None for Respondent. CORAM:- GIRISH GODBOLE, J DATED:- JULY 28, 2011 P.C. 1. Heard Mr. Shah, Advocate for the Appellant. This Appeal is filed by the heirs of the original Defendant Dattu Gaikwad for challenging Judgment and Decree dated 27/7/1995 passed by the learned Civil Judge, Junior Division, Koregaon in RCS No. 191 of 1987, as confirmed by the impugned Judgment and Order dated 24/1/2011 passed by the Learned Principal District Judge, 2 sa177.11 Satara in Regular Civil Appeal No. 264 of 2005. 2. By the impugned Judgment and Decree of the trial Court, the Defendant was directed to execute re-conveyance deed by accepting a sum of Rs. 4,000/-. Execution of the first document styled as Sale Deed dated 16/4/1979 which was executed by the Respondent/Plaintiff in favour of the original Defendant is not the subject matter of the dispute while execution of a separate Agreement dated 16/4/1979 executed by the original Defendant in favour of the Respondent is the subject matter of dispute. The Courts below have concurrently held that the nature of transaction was in fact a mortgage and that the Defendant had executed the disputed Agreement, which was also registered on the same day on which the earlier Sale Deed was executed. The admissions given by the Defendants in the cross-examination clearly show that the real nature of the transaction was a mortgage transaction and was not an out right sale. Since the condition regarding re-conveyance has not been embodied in the said document, there was no deeming provision which could enable the plaintiff to show that the document is mortgage by conditional sale. However, since the Defendant has himself admitted the nature of transaction to be a mortgage, despite the fact that section 58(c) of the Transfer of Property Act, 1882 would not come to the aid of the Plaintiff, Plaintiff has successfully and independently proved that the nature 3 sa177.11 of transaction was a mortgage. 3. The findings of facts recorded by the Courts below both about execution of the Agreement and the contents thereof are just and proper, which are based on cogent evidence available on record. No question of law arises in this Second Appeal. Accordingly, this Second Appeal is dismissed. 4. In view of dismissal of the Second Appeal, Civil Application does not survive and the same is dismissed. (GIRISH GODBOLE, J)