IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.196 of 2004 BAIDYANATH @ BAIJNATH BHAGAT Versus JYOTISH PRASAD VERMA ----------- 15/ 01.07.2008 Heard learned counsel for the appellant and learned counsel for the respondents. This second appeal arises out of Title Suit No. 24 of 1995 which was filed by the sole plaintiff-respondent for redemption of Kebala with Ekrarnama dated 24.09.1987 and also for direction to the defendant-appellant to deliver the possession of suit land to the plaintiff and in case of his failure, to give possession through the process of the court and for other ancillary reliefs. The said suit was decreed by the learned Munsif, Jamui vide judgment and decree dated 24.01.2001 which was challenged by defendant-appellant in Title Appeal No. 08 of 2001 which was dismissed by the learned Additional District Judge-cum-Fast Track Court No.2, Jamui vide judgment and decree dated 22.05.2004. The defendant-appellant has challenged the said judgments and decree of the learned courts below in the instant second appeal. From a perusal of the impugned judgments and decree of the learned courts below, it is quite apparent that they have come to a definite finding that the plaintiff had received Rs.5000.00 as loan which is evident from page-12 of Exhibit-1. It is also held that once the term of the deeds are covered by section 58(c) of the Transfer of Property Act then it must be taken to be a mortgage by a conditional sale unless there were express words to indicate the contrary but in the instant case there is no such words indicating the contrary. The learned courts below have also found that the document in question falls within the definition of mortgage by conditional sale and hence the presumption should legally be that the document is a mortgage sale. In the said circumstances the onus was squarely upon the defendant to dispel the aforesaid claim but he miserably failed to discharge his onus to prove that Exhibit-1 was a sale deed. In the said facts and circumstances the learned courts below have rightly come to the conclusion that Exhibit-1 was a deed of mortgage by conditional sale and there was a relationship of mortgagor and mortgagee between the parties and on the basis thereof the defendant had not acquired any title to the suit land. In the aforesaid facts and circumstances, there is no illegality in the impugned judgments and decree of the learned courts below nor there is any substantial question of law involved in the instant second appeal, which is accordingly dismissed. harish/ (S.N.Hussain, J.)