IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.283 of 2008 ----- Yadav Raut son of Hussaini Rout @ Hussain Raut, resident of Mohalla- Zamadar Tola Ward No.11 Bettiah P.S. & P.O. Bettiah, District-West Champaran. --Plaintiff-Appellant-Appellant. Versus 1. Mohammad Noor Alam son of Nek Mohammad 2. Nek Mohammad son of Hazi Gulam Mohammad. Both resident of Mohalla- Zamadar Tola, Bettiah P.S. & P.O. Bettiah, District- West Champaran. -- Defendants-Respondents-Respondents. ----- For the appellant : Mr. Yogendra Pd. Sinha No.I with Mr. Nirmal Kumar Sinha No.3, Advocates. For the respondents : None. ---- 06. 26.10.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole plaintiff-appellant-appellant challenging the judgment and decree dated 20.05.2008 by which the learned Additional District Judge- cum- Fast Track Court-III, West Champaran, dismissed Title Appeal No.12 of 1993 and affirmed the judgment and decree dated 27.11.1992 by which the learned Munsif, West Champaran dismissed Title Suit No.126 of 1990. 3. The aforesaid suit was filed by the sole appellant for redemption of the mortgage vide deed dated 23.12.1986 (Ext.-4/A) which was executed by the plaintiff-appellant in favour of the defendants-respondents. The said suit was contested by the defendants-respondents and subsequently the suit was dismissed on contest by the learned trial court vide judgment and decree dated - 2 - 27.11.1992. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal No.12 of 1993 which was also dismissed by the learned court of appeal below vide judgment and decree dated 20.05.2008. The said judgments and decree are under challenge in the instant second appeal. 4. The main question in issue raised before this court is as to whether the said deed executed by the plaintiff in favour of the defendants was a mortgage by conditional sale as claimed by the plaintiff or it was a simple sale deed with a condition to repurchase as claimed by the defendants. 5. Both the learned courts below have considered the said question and the learned court of appeal below has noted the contents of the said deed in paragraph 25 of its judgment which clearly shows that it cannot legally be deemed to be a mortgage by conditional sale, rather it is a simple sale deed with condition to repurchase. It is also mentioned in the said document that the defendants shall remain in possession of the suit land and would cultivate it and would spend its usufruct according to their own free will and would pay Malguzari with respect thereto and would get their names mutated. In the said circumstances, the factors mentioned in the said deed clearly show that the claim of the plaintiffs was not justified and there was no question of any mortgage by conditional sale. 6. Learned counsel for the appellant relies upon a decision of the Hon’ble Apex Court in case of Smt. Indira Kaur and - 3 - others Versus Shri Sheo Lal Kapoor, reported in A.I.R.1988 Supreme Court 1074. From a perusal of the said decision, it transpires that the said case is not applicable to the instant case due to the aforementioned facts. 7. Accordingly, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal. Thus, this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)