Under Section 58(c) of the Transfer of Property Act, 1882, a transaction is not a mortgage by conditional sale unless the condition for reconveyance is expressly embodied within the same document that effects the sale; a separate agreement for repurchase cannot convert an absolute sale deed into a mortgage.

Judgment on Board

1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the appellant/plaintiff against the impugned judgment and decree dated 21.04.2017 passed by IVth Additional District Judge, Ambikapur, District Surguja, in Civil Appeal No.A 25/2014 whereby the First Appeal filed by the appellant against the impugned judgment and decree dated 30.07.2012 passed by Ist Civil Judge Class-II Ambikapur, District Surguja, in Civil Suit No.44-A/2010 has been dismissed and the judgment and decree of trial court has been affirmed.

2. For the sake of convenience, the status of parties are being taken in the present Second Appeal as per their status shown in the Civil Suit.

3. The present Second Appeal was admitted by this court on 04.09.2025 for hearing on the following substantial question of law:

“Whether both the courts below were justified in recording its finding that agreement (Ex.P/2) is not mortgaged by conditional sale but it is a sale deed executed by the plaintiff?”

4. The plaintiff filed a Civil Suit for declaration of title and permanent injunction over the suit land Khasra No.95/4 Area 0.222 Hect. situated at village Sahanpur, Tehsil Lundra, District Surguja. The pleadings made in the plaint are that, the plaintiff was the owner of suit land. In the year, 1999 the plaintiff was in need of money to repay the bank loan and he contacted the defendant No.1 and borrowed an amount of Rs.25,000/- from him and pledged the said land to the defendant No.1. The suit land was usufructuary mortgaged with the defendant No.1 till repayment of loan amount. However, instead of executing the mortgage deed, the defendant No.1 got executed a sale deed in his favour. The defendant No.1 has also assured that whenever the plaintiff repay the borrowed amount, he will execute a re-conveyance deed in his favour. As per the assurance and mutual settlement between the parties, the plaintiff repaid the entire amount of Rs.25,000/- in three installments up to December, 1999 and took possession of the suit land back from the defendant No.1. In the year, 2009, the defendant No.1 tried to possess the suit land saying that he is the owner of suit property and he will not permit the plaintiff to cultivate the same. He has not executed any sale deed and it was only a mortgage deed, but with the collusion of revenue authorities he got his name mutated in the revenue records. Therefore, a suit has been filed by the plaintiff.

5. The defendant No.1 contested the suit of plaintiff and filed his written statement with the pleading that after obtaining entire sale consideration the plaintiff has executed the sale deed and from the date of execution of sale deed, the defendant No.1 is in possession of the suit land and got his name mutated in the revenue records also. A false and frivolous claim has been raised by the plaintiff to grab the property of defendant No.1. By his full consciousness mind and in presence of attesting witnesses he signed the sale deed and handed over possession of the suit land to defendant No.1 and after about 10 years of sale transaction the plaintiff is raising dispute which is an afterthought and no cause of action arose in his favour and therefore the suit is liable to be dismissed.

6. On the basis of the pleadings made by the counsel for the parties, the trial court has framed the following issues: