1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. S.A.NO.176 OF 2009 Kashiram M.Kodape (dead) through L.Rs. .. .vs.. Rajayya Yellayya Mogaliwar. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. -------------------------------------------------------------------------------------------------------------------------- Ms T.H.Udeshi, Advocate for the appellants. Mr.S.Nandanwar, Adv. for the respondent. Coram : C.L.PANGARKAR, J. Dated : 6th August 2009. 1. This appeal is preferred by the defendant against whom a decree for redemption of mortgage has been passed by the trial court, which is confirmed by the first appellate court. 2. It is the case of the respondent/plaintiff that he had obtained a loan of Rs.5000/- and in lieu of the same he had executed a deed of mortgage in favour of the appellant/defendant. It is also his case that after a few years, he had requested the defendant to take the amount back and to reconvey but the defendant did not 2 reconvey. It is not in dispute that the sale-deed was executed by the respondent/plaintiff in favour of the appellant/defendant and there was a condition in the sale-deed that the defendant/appellant would reconvey the same upon repayment of Rs.5000/-. As already stated, it is contention of the respondent that it was the mortgage. The suit for redemption came to be filed in the year 1997. 3. The defendant resisted the suit and had contended that the transaction in suit is not one of mortgage but it was a simple transaction of sale deed with condition of repurchase. The defendant denied that it was a mortgage. 4. The learned judge of the trial court upon consideration of the evidence found that transaction in suit was one of mortgage and not a condition of sale and plaintiff was entitled to redemption. The appellate court also concurred with the said findings. 5. The learned counsel for the appellant submits before me that the courts below have not properly appreciated the document in question. She submits that if the document in question is read, it 3 would be very clear that it is only a conditional sale- deed and not a mortgage at all. She particularly invited my attention to the title of the said document Exh.48. The title of the document is to the effect that it is a conditional sale-deed. 6. The learned counsel for the respondent submits that mere title of the document or nomenclature of the document is not sufficient to determine the nature of the transaction but entire contents of the document are required to be read and then alone the court would be able to decide the nature of the document. He submits that the courts below have considered the document as a whole and found that it was a mortgage deed. He submits that as a fact the court has found that it was mortgage deed and not a conditional sale-deed and this court cannot interfere with the findings of fact recorded by the courts below. 7. The nature of the document can be determined on the question as to whether there exists a relation in between the debtor and the creditor. If there is relationship of debtor and creditor then transaction in question becomes a mortgage. 4 8. After having gone through the contents of the document, it is apparent that the document contains a recitals that the transaction is one of ‘Taran’ and ‘Gahan’ and the sale-deed is executed as against the hand loan taken by the present plaintiff. If all these things are read together, the conclusions that are arrived at by the courts below cannot be said to be perverse. The documents has been rightly appreciated by the courts below. There are concurrent findings of fact. No question of law is raised before the court nor it is shown that there is any perversity in the appreciation of the evidence. In the circumstances, there is no substance in the appeal. The same is dismissed in limine. 9. The learned counsel for the appellant submits that the sowing operations are complete and the crop is standing in the field and in the circumstances the possession of the appellant be protected till 30th March, 2010. In the circumstances, the respondent shall be able to execute the decree only after 30th March, 2010. JUDGE. chute