A sale deed lacking a mortgage clause cannot be construed as a mortgage, and its nature must be recognized as an outright sale.

1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellants / legal representatives of the defendant is as under:
"Whether the Court below has committed an error of law in not accepting the sale deed dated 9.7.1969 as a proper sale deed and the basis of the finding arrived at is perverse or not ?"
(For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court).

2. The suit property was originally held by Shobhit and Mangalu, which they sold by registered sale deed dated 9.7.1969 (Ex.D1) to defendant - Bhaira (who died during pendency of this second appeal) and placed him in possession. Late Shri Bhaira applied for mutation of his name before the Assistant Settlement Officer, Balodabazar on the strength of sale deed dated 9.7.1969, which was rejected by order dated 26.6.2000 (Ex.P1), against which, defendant - Bhaira preferred appeal before the Additional Collector, Balodabazar. The Additional Collector, Balodabazar by order dated 21.01.2003 (Ex.P2) held that sale deed dated 9.7.1969 is real / outright sale and it is not executed for security of loan and directed for recording of name of defendant - Bhaira in revenue records. Thereafter, on 21.2.2003 the plaintiffs filed a suit for declaration of title and permanent injunction stating inter alia that sale deed dated 9.7.1969 (Ex.D1) is not real / outright sale and it is executed for security of loan and the plaintiffs have perfected their title by way of adverse possession over the suit land, Shobhit and Mangalu had no right and title to alienate the suit property and order of the Additional Collector, Balodabazar dated 21.01.2003 (Ex.P2) is not binding on them. Therefore, the plaintiffs are entitled for decree of declaration of title and permanent injunction.

3. Resisting the suit, Defendant - Bhaira filed his written statement and denied the averments made in the plaint stating inter alia that sale deed executed by Shobhit and Mangalu in favour of him is real and outright sale, which has already been held by the Additional Collector, Balodabazar by order dated 21.01.2003 (Ex.P2) and as such, the suit deserves to be dismissed.

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 28.7.2008, dismissed the suit holding that sale deed dated 9.7.1969 (Ex.D1) is real / outright sale and Shobhit and Mangalu had right to alienate the suit property and order of the Additional Collector, Balodabazar dated 21.01.2003 (Ex.P2) is binding on the plaintiffs. On appeal being preferred by the plaintiffs, the first appellate Court by the impugned judgment and decree interfered with said findings of the trial Court and allowed the appeal and thereby granted decree in favour of the plaintiffs, against which, this second appeal under S.100 of the CPC has been filed by the appellants / legal representatives of the defendant, in which one substantial question of law has been formulated, which has been set out in the opening paragraph of this judgment for sake of completeness.

5. Mr.M.D.Sharma, learned counsel for the appellants / legal representatives of the defendant, would submit that the first appellate Court went wrong in holding that Ex.D1 is not real / outright sale and it was executed for security of loan ignoring the provisions contained in S.58(c) of the Transfer of Property Act , 1882 (hereinafter called as ''TP Act'') particularly it has already been so held by the Additional Collector, Balodabazar by order dated 21.01.2003 (Ex.P2), as such, the judgmen