IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 762 OF 2005 Ganpati Hari Chougule..... ...... ..... Appellant V/s Baburao Nana Chougule.... ...... ......Respondent. Mr.S.S.Patwardhan, Adv. For the appellant. Mr.Amit Borkar, Adv. for respondent. CORAM: A.P.DESHPANDE, J. 29th JANUARY, 2009. PC: Heard Mr.Patwardhan, learned counsel for the appellant and Mr.Borkar, learned counsel for respondent. The present appellant is the original plaintiff whose suit has been dismissed and first appeal preferred against the same is also dismissed hence this second appeal is filed. It is admitted position that under a registered sale deed dated 10.9.82 the appellant sold the suit land in favour of the respondent. Belatedly in the year 1999 a suit came to be filed placing reliance on an unregistered agreement dated 10.9.82 terming the registered sale deed executed on 10.9.82 as a document of mortgage by conditional sale. According to the appellant on the same date on which the sale deed was executed and registered another document (unregistered agreement) was executed wherein a stipulation was made that as and when the appellant pays 1 sum of Rs.14,000/- the property would be re-conveyed. Basically the contention of the appellant was that the sale deed was a mortgage by conditional sale and hence the appellant had right of redemption of the property. In view of the fact that there are two separate documents one registered sale deed and the other unregistered agreement, case of mortgage by conditional sale stands ousted by the proviso to sub-section (c) of section 58 of the Transfer of Properties Act. The first appellate court has recorded a finding to that effect. The Court below has also expressed its doubt about the genuineness of execution of agreement purportedly executed on the same date on which the sale deed has been executed. The learned counsel for the appellant has contended that both the courts below have misdirected the inquiry into the question as to whether the sale deed is a mortgage by conditional sale when as a matter of fact the suit is brought for specific performance of contract. Perusal of the plaint does reveal that a prayer for specific performance of agreement is asked for. However the basis for making said prayer is by terming registered sale deed as a document of mortgage by conditional sale. The finding recorded by the courts below that the sale deed is not a document of mortgage by conditional sale is very much legal and proper and doest not call for any interference. No substantial question of law arises for consideration. Hence second appeal is summarily dismissed. 29.01.2009. 2