1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 379 OF 2001 Sena Bhaga Chitte, Age : Adult, Occu. : Agril., R/o Talwade Budruk, Tq. Nandurbar, District Dhule .. .. .. APPELLANT (Orig. Plaintiff) Versus 1. Trimbak Namdeo Patil, Age : Adult, Occu. : Agril., 2. Smt. Bhagirathibai W/o Trimbak Patil, Age : Adult, Occu. : Household, 3. Smt. Narmadabai W/o Totaram Patil, Age : Adult, Occu. : Household, 4. Vithal Sitaram Patil, Age : Adult, Occu. : Agril., -------------------------------------------------------------------- 5. Sambhu Vedu Chitte, Age : Adult, Occu. : Agril., -------------------------------------------------------------------- Abated as per Courts order dated 18.06.2009. All R/o Talwade Budruk, Tq. Nandurbar, Dist. Dhule. .. .. .. RESPONDENTS (Orig. Defendants) Shri P. S. Raut, Advocate h/f Shri J. R. Shah, Advocate for the Appellant. Shri Mahendra Kochar, Advocate for the Respondents No. 1 to 4. CORAM : N. D. DESHPANDE, J. DATE : 20TH NOVEMBER, 2009. 2 ORAL ORDER : 01. Heard Shri Raut, advocate holding for Shri Shah, the learned counsel for the appellant and Shri Kochar, the learned counsel for the respondents No. 1 to 4. Perused the impugned judgment dated 19.08.1999 in Civil Appeal No. 51 of 1992 passed by Additional District Judge, Nandurbar and also judgment and order in Regular Civil Suit No. 513 of 1989 dated 08.07.1992 passed by Civil Judge Senior Division, Nandurbar. Both the judgments are impugned in this appeal. Both the Courts below dismissed the plaintiffs/appellants suit for redemption of mortgage and getting possession back from respondent No. 1 and also from other respondents who are now holding possession of the suit land from the respondent No. 1 as a subsequent purchasers. The appellant filed civil suit on or about 15.02.1989 against the respondents No. 1 to 5. The respondents No. 1 to 4 are the main contesting defendants and defendant No. 5 is cousin of plaintiff and supported the plaintiffs claim in the Trial Court by filing written statement. 02. The appellants case is that, the suit land survey No. 15/1 corresponding Gat No. 29/1A admeasuring 4 acre 23 guntha situated at village Talwade Budruk, taluka and District Nandurbar was owned and possessed by him and he was in need of money, therefore he and his cousin defendant No. 5 both executed registered sale deed in favour of respondent No. 1 for Rs. 5,000/- and delivered the possession as per sale deed dated 19.05.1970. After the said sale deed at the back of plaintiff, it was transfered in the name of respondent No. 2 by respondent No. 1. The respondent No. 2 is the 3 wife of respondent No. 1. Thereafter in the year 1986, it was sold by them to respondent No. 2 to 4. The plaintiff knew about the said transfer in the year 1989 and thereafter he filed present suit for redemption of mortgage and possession back from them. The appellant's case is that, it was not an out and out sale for the consideration of Rs. 5,000/- in favour of respondent No. 1 and in fact transaction was a mortgage and sale deed was executed by way of security and for satisfaction of the loan amount in due course. So possession was also delivered to defendant No. 1 who pocketed said land for satisfaction of debt. The plaintiff further stated that, for about 18 to 19 years, the land was under cultivation of the respondents and debt is fully discharged and the land is free from encumbrances, and therefore, he is entitled to get back the land and in the alternative he is ready to pay the loan amount of Rs. 5,000/- which he had borrowed from the respondent No. 1. 03. Although, sale deed was executed jointly by plaintiff and defendant No. 5 and amount was borrowed by both of them, because in family partition the suit land went to the share of plaintiff No. 1 and therefore, he brought this suit. It is also supported by the defendant No. 5 by filing written statement on all these material points. 04. It is seen that, both the Courts have recorded findings against the plaintiff and dismissed the suit. There are concurrent finding that, the document sale deed was out and out sale and no case of mortgage was proved. 4 05. Shri Raut, the learned counsel for the appellant urged that, the plaintiffs case of redemption of mortgage was not challenged in both the Courts below. There is no written statement and evidence of plaintiff was unchallenged. As such, the findings recorded by the Courts below are illegal. 06. It is seen that, the plaintiffs suit was filed after 19 years of the alleged loan transaction. The land also passed from one hand to another during this period. Admittedly, the possession was delivered and there is no recital found in the sale deed about the mortgage for conditional sale. Except the oral evidence of plaintiff, there is no material on record to draw inference of loan transaction. As against the documentary evidence, no oral evidence is permissible in law. The Trial Court has decided the case on merits saying no evidence brought on record. Both the Courts below have elaborately discussed the issue and find no substance in the plaintiffs claim. Moreover, the plaintiffs case before the Trial Court is not supported by any cogent evidence and is inconsistent or contrary to the document of sale deed which is admittedly executed by him for valuable consideration. I find no substance in the second appeal. The second appeal stands dismissed summarily at the admission stage. [ N. D. DESHPANDE, J.] bsb/Nov. 09