1 SA444/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 444 OF 2011 Samindrabai w/o Keru Gaikwad and others Appellants V E R S U S Deoram s/o Vitthal Birangal Respondent Shri R.A. Tambe, Advocate for the appellants Shri A.P. Bhandari, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 13th September, 2011 PER COURT : 1. Heard. 2. This second appeal challenges the concurrent findings of the Courts below that the suit transaction was a mortgage and not a conditional sale. On perusal of the document, it becomes clear that though the document is titled as “conditional sale”, the contents of the document betrayed the title and both the parties believed that it was a transaction of mortgage. The Courts below on facts appreciated this in favour of the respondent – mortgagor and decreed the suit for redemption. No substantial question of law on this point arises. 3. The learned Advocate appearing for the appellants mentioned that the appellants / defendants did not get opportunity to cross-examine one of the witnesses of respondent / plaintiff and they did not get opportunity to lead their own evidence also. He pointed out that in the appeal-memo filed before the learned first appeal Court, a lot of stress is given on need to remand the case back so that the appellants / defendants could cross- 2 SA444/2011 examine the witness and lead their own evidence also. However, on perusal of the Judgment of the learned first appeal Court, it is found that during oral submissions, the plea for remand was not made at all. The learned Judge of the first appeal Court mentioned about the submissions made by the appellants’ Advocate before him. Had the appellants’ Advocate made a plea for remand of the case, the learned Judge of the first appeal Court would not have ignored it. In view of this, at this second appeal stage, even this aspect of the case would not give rise to any substantial question of law. The appeal should therefore fail. Second appeal stands dismissed. In view of dismissal of the Second Appeal, Civil Application No. 10374 of 2011 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/444/11/13/9/11