1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1751 OF 2005 1 Eknath Tanhu Mali, age: 54 years, Occ: Agriculturist; 2 Jagannath Tanhu Mali, age: 51 years, Occ: Agriculturist; 3 Raghunath Tanhu Mali, age: 47 years, Occ: Agriculturist; 4 Kashinath Tanhu Mali, age: 45 yars, Occ: Agriculturist; 5 Sakubai Tanhi Mali, age: 52 years, Occ: Household; All R/o Kharchi Budruk, Taluka Erandol, District Jalgaon. Appellants No.1, 3, 4, 6 through their Special Power of Attorney Holder Jagannath Tanhu Mali, age: 51 years, Occ: Agriculturist, R/o Kharchi Budruk, Taluka Erandol, Dist. Jalgaon. Appellants Versus 1 Sajan Shenphadu Mali, deceased through his L.Rs.: 1A Tapabai Sajan Mali, age: 76 years, Occ: Household; 1B Santosh Sajan Mali, age: 61 years, Occ: Agriculturist; 2 1C Narayan Sajan Mali, age: 56 years, Occ: Agriculturist; 1D Sudam Sajan Mali, age: 51 years, Occ: Agriculturist; Respdts. No.1A to 1D R/o Babhalengga, Taluka Parola, Dist. Jalgaon. 1E Smt.Bhagabai Santosh Mali, age: 47 years, Occ: Household, R/o Etawe, Tal. Parola, District Jalgaon. 1F Annap;urnabai Govinda Mali, age: 45 years, Occ: Household, R/o Varad, Tal. Erandol, District Jalgaon. 1G Sau.Reshmabai Ananda Mali, age: 41 years, Occ: Household, R/o Kharchi, Tal. Erandol, District Jalgaon. 2 Baijabai Santosh Mali, age: 61 yars, Occ: Householdl; 3 Waman Santosh Mali, age: 49 years, Occ: Agriculturist; 4 Gorakh Santosh Mali, age: 46 years, Occ: Agriculturist; 5 Kailas Santosh Mali, age: 45 years, Occ: Agriculturist; 6 Dilip Santosh Mali, age: 439 years, Occ: Agriculturist; Respondents No.2 to 6 R/o Bhabalengga, Tal. Parola, District Jalgaon. 3 7 Kewalabai Madhavrao Mali, age: 39 years, Occ: Household, R/o Vikharan, Tal. Erandol, District Jalgaon. 8 Sau.Marabai @ Ashabai Ishwar Mali, age: 42 years, Occ: Household, R/o Etawe, Tal. Parola, District Jalgaon. 9 Sau.Jainabai Madhav Mali, age: 36 years, Occ: Household, R/o Ambapimpri, Tal. Parola, District Jalgaon. 10 Sau. Meenabai Tukaram Mali, age: 35 years, Occ: Household, R/o Varad, Tal. Erandol, District Jalgaon. 11 Thagubai Tanhu Mali (deceased) 12 Girijabai @ Durgabai Kautik Mali, deceased through her L.Rs.: 12A Kautik Lotu Mahajan, deceased through his L.Rs.: 12B Devidas Kautik Mahajan, age: 49 years, Occ: Agriculturist; 12C Madhukar Kautik Mahajan, age: 47 years, Occ: Agriculturist; 12D Pundlik Kautik Mahajan, age: 42 years, Occ: Agriculturist; 12E Chandrakant Kautik Mahajan, age: 40 years, Occ: Agriculturist; Respondents No.12A to 12E R/o 4 Kharchi (Bk), Tal. Erandol, District Jalgaon. Respondents Mr.Sanket S. Kulklarni, advocate holding for Mr.V.T.Choudhari, advocate for the appellant. Mr.Sandeep S. Deshmukh, advocate for Respondents No.1C to 1G & 2 to 10. CORAM: R.M.BORDE, J. DATE : 08th October, 2009. P.C.: 1 This is an appeal by original plaintiffs challenging the concurrent findings recorded by both the Courts below. 2 Plaintiff instituted suit claiming redemption of mortgage against defendants. According to plaintiff, he was in need of money and as such, mortgaged his property to the defendant, however, he has executed sale deed in respect of the property on 27.11.1981. On the same day, defendant agreed to reconvey the property in favour of father of plaintiff on accepting Rs.15,000/-. No time limit was fixed for reconveyance of the property. Father of the plaintiff died on 18.02.1984. It is contended by the plaintiff that he approached the defendant and requested to reconvey the property in accordance with the agreement executed on 27.11.1981. However, defendant refused to do so, as such, plaintiff was constrained to file the suit. 3 Defendant filed written statement and denied the contentions raised by plaintiff. He has categorically contended that father of plaintiff, on accepting total consideration of Rs.10,000/-, sold away the property to the defendant. Defendant denied the agreement in respect of reconveyance of the property. 5 4 The trial Court, after receiving evidence led by the parties and on appreciation of same, recorded a finding that plaintiff has failed to establish that his father entered into a mortgage transaction with defendant on 27.11.1981. As such, trial Court dismissed the suit. The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.51 of 1998 at the instance of plaintiff. However, appeal came to be dismissed by the first appellate Court on 13.07.2005. 5 I have perused the judgments recorded by both the Courts below. The mandatory requirement that the condition in respect of reconveyance shall have to be incorporated in one and same document in order to bring the transaction within definition of Section 58-C of the Transfer of Property Act, is not fulfilled. The Courts below have adopted a view that the transaction in question cannot be construed as mortgage. The view adopted by both the Courts below appears to be legal and proper and does not call for interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration n the appeal. 6 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa175105