The Court reaffirmed that absence of specific stipulations in a sale deed under S.58(c) of the TP Act prevents its classification as a mortgage.

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 first appellate Court was justified in reversing the judgment and decree passed by the trial Court holding that the defendants are not title holders and the plaintiffs are entitled for the suit property by recording a finding which is perverse and contrary to the record?"
[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 father of plaintiff Nos.1 to 3 and husband of plaintiff No.4 Khelan Satnami, which he said to have alienated in favour of defendant No.1 Bhaira (who died during pendency of this second appeal) on 27.4.68 vide Ex. PD / 1B. It is the case of the plaintiffs that the suit property was originally coparcenary property and Khelan Satnami had no right to alienate the said property in favour of defendant No.1 Bhaira in which they are in peacefully possession for last 30 years and acquired the title by way of adverse possession. It was further pleaded that in the year 1998, defendant No.1 filed an application before the Assistant Settlement Officer, Balodabazar for mutation of his name in revenue records that he has purchased the suit property vide Ex.D / 1B dated 27.4.1968, which was rejected by the Assistant Settlement Officer by order dated 20.6.2000 finding that it is not transaction of sale, but it was reversed by the Additional Collector, Balodabazar by its order dated 30.10.2002 (Ex.D2) and the Tahsildar, Balodabazar by order dated 30.1.2003 (Ex.D3) directed the land to be recorded in the name of defendant No.1 leading to filing of the suit for declaration of title and permanent injunction stating interalia that they are in possession of the suit land and they have perfected their title by way of adverse possession and order dated 30.10.2002 (Ex.D2) passed in favour of defendant No.1 is not binding on them and they are entitled for declaration for declaration of title and permanent injunction.

3. Resisting the suit, defendant No.1 filed his written statement and denied the averments made in the plaint stating inter alia that it is real sale and he is in possession of the suit land having been purchased by registered sale deed dated 27.4.1968 vide Ex.D1B and his name has duly been mutated in revenue records by the order of the Additional Collector, Balodabazar and sale deed is binding upon the plaintiffs, the plaintiffs are not in possession of the suit land and the suit is barred by limitation, 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 31.12.2007, dismissed the suit holding that the plaintiffs have failed to prove adverse possession over the suit land and 27.4.1968 Ex.D1B is real sale deed and the suit is barred by limitation. On appeal being preferred by the plaintiffs, the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit, 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 setout in the opening paragraph of this judgment for sake of completeness.

5. Mr. Prakash Tiwari learned counsel for the appellants / legal representatives of the defend