Judgment 1. THIS second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Midnapore in Title Appeal No. 389 of 1971, confirming the judgment and decree of dismissal as passed by the learned Munsif, 1st Court, Tamluk in Title Suit No. 109 of 1970. 2. PLAINTIFF filed the suit for a declaration that the transaction effected between the parties by sale deed and the deed of agreement for re conveyance in respect of the suit land was a loan in substance and for accounting together with a prayer for recovery of possession in the suit land. It was the case of the plaintiff in brief that the plaintiff took a loan of Rs.600/- from the defendant on 30.5.1949 and as security for the said loan, the plaintiff executed the sale deed in respect of the suit land on 30. 5. 1949 and the defendant executed a deed of agreement for re conveyance in favour of the plaintiff in respect of the suit land on 2. 6. 1949 agreeing to re-convey the suit land within Chaitra of 1365 B. S. on repayment of the amount of Rs.600/ -. It was further alleged that as per the oral contract the possession of the suit land was given to the defendant to enjoy the usufruct in lieu of interest. The plaintiff approached the defendant for accounting in 1376 B. S. but the defendant refused to submit any account and give back the possession of the suit land. Hence this suit. 3. THE defendant filed the written statement and contested the suit. The defendant denied the allegation of the plaintiff with regard to the advance of any loan by the defendant to the plaintiff. It was contended inter alia that the plaintiff sold the suit land to the defendant for a consideration of Rs.600/- with an agreement for re conveyance of the suit land by the defendant in favour of the plaintiff within Chaitra, 1365 B. S. on plaintiff's repayment of the consideration money. The transaction affected between the parties by the sale deed and the deed of agreement for re conveyance was the out and out sale subject to the agreement for re conveyance and the transaction was not at all a loan in substance. The transaction affected between the parties by the sale deed and the deed of agreement for re conveyance was the out and out sale subject to the agreement for re conveyance and the transaction was not at all a loan in substance. It was further contended that the plaintiff did not offer the consideration money within the stipulated time to get the deed of re conveyance. As the transaction was not a loan in substance the plaintiff was not entitled to any relief in the instant suit. 4. THE learned Munsif on consideration of the evidence and other facts and circumstances found that the transaction between the parties was an out and out sale subject to an agreement for re conveyance in respect of the suit land and that it was not a loan in substance and accordingly dismissed the suit. On appeal the learned Additional District Judge confirmed the judgment and decree of dismissal as passed by the learned munsif. Being aggrieved, the plaintiff has preferred this second appeal on the ground that the first appellate court committed mistake in law in confirming the judgment and decree of dismissal as passed by the learned Munsif. 5. MR. M.N. Ghose with Mr. D.K. Sen appearing for the appellant plaintiff has submitted that the first appellate court and in fact both the courts below have considered the CASE from a wrong approach and strong angle of vision. The mention of the same consideration in the agreement for re conveyance for the purpose of re conveyance was sufficient for arriving at a conclusion that the transaction was not an out and out sale with an agreement for re conveyance but a loan in substance and the said circumstance was not at all considered by the courts below. Mr. Ghosh has further submitted that although both the courts below arrived at the concurrent finding regarding the circumstances like possession in the suit land, market value of the suit land at the time of execution of both the deeds in question and the time factor for executing the deed of re conveyance, still their such concurrent findings had been tainted with mistake in law because of their wrong approach in considering the aforesaid circumstances. 6. MR. A.N. Roy with Mr. 6. MR. A.N. Roy with Mr. D.P. Adhikary appearing for respondent defendant has submitted that both the courts below arrived at the concurrent finding of facts with regard to the transaction in question after due consideration of the relevant circumstances with their finding on consideration of such circumstances and that accordingly this second appellate court cannot interfere with the said concurrent findings of fact. Section 37a of the Bengal Money lenders Act reads as follows : "in the case where any loan is secured by a mortgagee and the mortgager ostensibly sells the mortgaged property on any of the conditions specified in sub-section (c) of section 58 of the Transfer of Property Act, 1882 (IV of 1982) then notwithstanding anything to the contrary contain in proviso to the said subsection, the transaction shall always be deemed to be a mortage by conditional sale for the purpose of the said sub-section." 7. A borrower to get the protection of section 37a of Bengal Money Lenders act must show firstly that there is a loan, secondly such loan has been secured by executing a mortgage and thirdly the borrower ostensibly sells the mortgaged property on any of the conditions enumerated in Section 58 (c) of the Transfer of Property Act. If the above conditions are fulfilled then only the transaction is to be treated as the mortgage by conditional sale even if the transaction is affected by the two separate deeds viz., the ostensible sale deed and the agreement for re conveyance 'loan' as defined in Section 2 (12) of the Bengal Money Lenders Act includes any transaction which is in substance a loan. For determination of the nature of the transaction, intrinsic evidence from the recitals of the two documents themselves and the extraneous evidence regarding possession in the suit property and the value thereof are relevant. The decision in the case of the MANINDRA NATH BOSE vs. NARENDRA KISHORE MITRA and ANOTHER in 1980 (II) C. L. J. 70 is relied on. 8. EX. A (2) is the sale deed dated 30. 5. 1949 and Ex. 3 (b) is the deed of agreement for reconveyance dated 2. 6. 1949. There is no dispute to the fact that both the deeds were registered on the same date. 8. EX. A (2) is the sale deed dated 30. 5. 1949 and Ex. 3 (b) is the deed of agreement for reconveyance dated 2. 6. 1949. There is no dispute to the fact that both the deeds were registered on the same date. It is the case of the plaintiff that the plaintiff took a loan of Rs.600/- from the defendant and by way of security the aforesaid two deeds were executed and that the transaction affected between the parties by the aforesaid two deeds was a mortgage by conditional sale and not an out and out sale with an agreement for re conveyance of the suit property. Both the courts below on due consideration of the intrinsic evidence as well as the extraneous evidence regarding the possession in the suit land by the defendant, the payment of rent consistently by the defendant, the entry of the defendant's name in the R. S. record of rights in respect of the suit land, and the market value of the suit land at the relevant time and also oh due consideration of the fact that a long time was given for executing the deed of reconveyance and that there was a stipulation in the deed of agreement for reconveyance debarring the defendants from transferring the land to any other person within the stipulated time as mentioned in the deed of agreement for reconveyance, arrived at the concurrent finding of fact that the transaction effected between the parties by the ostensible sale deed and the deed of reconveyance was an out and out sale with an agreement of reconveyance and not a loan in substance. The perusal of title judgments of both the courts below does not indicate that both the courts below considered the aforesaid circumstances from a wrong angle of vision or from wrong approach. The judgment of the first appellate court further shows that the first appellate court gave due consideration to the oral evidence as given by the P. W. 1 and P. W. 2 with regard to the nature of the transaction and arrived at the finding that their evidence being contradictory on material points could not establish that the transaction was a loan in substance. As regards the plaintiff's allegation that the suit land was given to the defendant to enjoy the usufruct in lieu of interest, both the courts below found that the plaintiff could not prove the same. The first appellate court found that the P. W. 2 stated in his evidence that the interest was fixed at 8% per annum contradicting the plaintiff's case that the possession of the suit land was given to the defendant to enjoy the usufruct in lieu of interest. The learned first appellate court on due consideration of the evidence and the facts and circumstances of the case found that the long time given in the deed of agreement for reconveyance and the stipulation therein to the effect that the defendant was debarred from transferring the suit land to any other person during the stipulated time given in the deed of agreement for reconveyance did not establish that the transaction was a loan in substance. All the aforesaid concurrent findings of fact of both the courts below on due appreciation of the relevant evidence cannot be interferred with in the second appeal. It is true that both the courts below have not considered one circumstance regarding the same consideration as mentioned in the ostensible sale deed and the deed of agreement for reconveyance although a long period of time for about 10 years was given for executing the deed of reconveyance. Mr. Ghose, learned counsel for the appellant plaintiff has submitted that the consideration for the reconveyance being the same amount as the consideration for the sale deed shows that the transaction was a loan in substance and has relied on the decision in the case of P. I. BAPUSWAMI vs. M. PATTAY GOUNDER reported in AIR 1966 SC. 902 . In the case reported in A.I.R. 1966, S.C. 902, there were several circumstances to indicate that the document was a transaction of mortgage by conditional sale and not a sale with a condition of repurchase. In the first place, the condition for repurchase was embodied in the same document. In the second place the consideration was Rs.4000/- while the real value of the property was Rs.8000/ -. In the third place, the patta was not transferred to the defendant after execution the document in question arid the kaist for the land was continued to be paid by the plaintiff of that case. In the second place the consideration was Rs.4000/- while the real value of the property was Rs.8000/ -. In the third place, the patta was not transferred to the defendant after execution the document in question arid the kaist for the land was continued to be paid by the plaintiff of that case. Lastly, the consideration for the reconveyance was the same amount as the consideration for the sale deed. In the instant case the circumstances like possession in the suit land, market value of the suit land at the relevant time of the transaction in question, the payment of rent and the entry in the R. S. record of rights have been found against the plaintiff. The alleged talk regarding the nature of transaction and about the enjoyment of the usufruct of the suit land in lieu of interest could not be found in favour of the plaintiff by both the courts below. So in the absence of the aforesaid important circumstances only one circumstance to the effect that the consideration for the reconveyance was the same amount for the consideration of the sale deed cannot establish that the transaction was a loan in substance. It is not unlikely that the plaintiff agreed to the same amount in the deed of reconveyance as the land in question was in the enjoyment of the defendant. It appears from the judgment of both the courts below that on due consideration of all the evidence and the facts and circumstances they arrived at the concurrent finding that the transaction in question was not a loan in substance but an out and out sale with an agreement for reconveyance. 9. IN view of what has been discussed above I find no justification to interfere with the judgment and decree as passed by the learned Additional District Judge confirming the judgment and decree of dismissal as passed by the learned Munsif when it could not be shown that the learned Additional District Judge committed mistake in law in doing so. In the result, this second appeal is dismissed on contest. The judgment and decree of the learned Additional District judge are confirmed. I make no order as to costs.