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2001 DIGILAW 117 (KAR)

MADAPPA v. SONAWA

2001-02-07

V.GOPALA GOWDA

body2001
GOPALA GOWDA, J. ( 1 ) THIS is Plaintiff's Second Appeal challenging the Judgment and decree passed by the Lower Appellate Court in R. A. No. 45 of 1992, dated 15th June 1994 and reversing the Judgment and Decree of the Principal Munsiff, Jamkhandi, in O. S. No. 21/1978, dated 29th august 1992, urging two substantial questions of law as framed at paragraph No. 6 of the Memorandum of Appeal. The rank of the parties in this Judgment is described as has been described in the original Suit for the sake of convenience. ( 2 ) CERTAIN relevant and necessary facts of this case are briefly stated for the purpose of appreciating, considering and answering the rival contentions urged by the learned Counsel appearing on behalf oi the parties. The Plaintiff filed the original suit against the defendants for grant of Judgment and Decree for delivery of possession of the suit schedule house property bearing VPC. No. 281 situated in Kunchanur village in Jamkhandi Taluk. The claim of the plaintiff is that the said house property measuring East to West 7 cubits and North to South 15 cubits which is fully described in the plaint schedule was purchased by the plaintiff from the deceased defendant Appanna chinnappa Birdar Patil as he was the absolute owner of the property and he had sold the said property by executing a registered sale deed dated 20th May 1970 in his favour after accepting Rs. 1,000/- towards consideration and possession of the property was delivered to him and it is his case that subsequently the deceased defendant with a mischievous intension of defrauding the right of the plaintiff had filed a false complaint with the Police and in the said proceeding the Police have disposed him from the suit schedule property. Further it is stated that the deceased defendant was in possession and there after his legal representatives Defendants 1 (a) to 1 (b) have been in possession and enjoyment of the suit schedule house and therefore the plaintiff had filed the Original Suit before the trial Court stating that his dispossession was about a year back as on the date of the institution of the suit and he got issued a legal notice dated 28. 12. 12. 1977 for which untenable reply was given by the deceased defendant falsely contending that the transaction of the property is not a sale but it is a mortgage. Therefore, Plaintiff has filed the original suit for recovery of possession. ( 3 ) THE deceased defendant filed a detailed written state mentdisputing the claim of the plaintiff traversing the plaint averments in detail inter-alia contending that the deceased defendant is not the exclusive owner of the property as it was an ancestral property, therefore he had 1/3rd interest upon the said property. The suit is bad for non-joinder of proper and necessary parties to the proceedings. The deceased defendant denied the execution of the sale deed for his family legal necessity, the property is worth about rs. 5,000/- and further denied delivery of possession to the plaintiff in pursuant to the recital of the sale deed. It is stated that the deceased defendant has been in possession and enjoyment of the property along with other sharers. It is stated by the deceased defendant that he was in need of money on loan basis, therefore he had approached the plaintiff. Then he had insisted him to execute the document for collateral security for the loan amount advanced by him to the deceased defendant. Therefore, he has nominally executed the sale deed as the plaintiff had assured him that on clearance of the loan amount, the document would be torn out. He had further stated that on the same day that plaintiff had executed an agreement deed agreeing to retransfer the suit property in the name of the deceased defendant on repayment of the loan amount borrowed by him. Therefore, it is stated that the transaction in respect of the suit property is as that of a mortgage but not outright sale as pleaded by the plaintiff. Therefore, the possession of the house property was not parted by the deceased defendant and he used to pay the interest on the principal amount borrowed from the plaintiff. The deceased defendant had further stated that after the provisions of the Karnataka Debt Relief Act of 1976 has come into force, he stopped paying interest as he is a 'debtor' in terms of the definition of "debtor" under the provisions of the Act. The deceased defendant had further stated that after the provisions of the Karnataka Debt Relief Act of 1976 has come into force, he stopped paying interest as he is a 'debtor' in terms of the definition of "debtor" under the provisions of the Act. The Sub-Divisional magistrate, Jamkhandi, has conducted an enquiry of mortgage transaction in respect of the suit schedule property that the defendant was absolved from payment of the principal amount. Suppressing the aforesaid relevant fact, the plaintiff instituted the Original Suit against the deceased defendant for recovery of possession of the house property from him. ( 4 ) ON the basis of the pleadings, the trial Court framed as many as 12 issues for its determination in support of the claim and counterclaim of the respective parties. The plaintiff examined himself as p. W. 1 and on behalf of deceased defendant, he was examined as d. W. 1. On behalf of the plaintiff, produced and marked the documents at Exs. P1 to P5 and on behalf of the deceased defendant, Exs. D1 to D5 were marked. The trial Court on the basis of appreciation of evidence on record with reference to the rival contentions urged on behalf of the parties has answered the issues by recording its reasons at paragraphs-9 to 30 holding that the plaintiff is entitled for a judgment and Decree of delivery of possession of the suit schedule property in his favour. The contentions raised on behalf of the deceased defendant were answered against him by answering the issues framed by the trial Court regarding Issue Nos. 5, 6, 7 and 8. The correctness of the Judgment and Decree of the trial Court was challenged by the Defendants 1 (a) to 1 (d) before the Principal Civil judge, Jamkhandi, under Section 96 C. P. C. in R. A. No. 45 of 1992. On the basis of the rival contentions urged by the learned Counsel on behalf of the parties, the First Appellant Court has formulated the following three points for its determination at paragraph 8 :-1) Whether the plaintiff proved that he was put in possession of the suit property on the date of the impugned sale deed dated 20. 5. 1970 and that a year prior to the filing of the suit, he came to be dispossessed by the defendant, with the aid of the Police? 5. 1970 and that a year prior to the filing of the suit, he came to be dispossessed by the defendant, with the aid of the Police? 2) Whether the defendants proved that the transaction between the Plaintiff and defendant is not a out and out sale and that it is in the nature of mortgage for the security of the loan taken by the defendant? 3) What order?the learned first Appellate Judge has an answered the points formulated by him after hearing the learned Counsel for parties by recording his reasons and set aside the Judgment and Decree of the trial Court passed in O. S. No. 21st of 1978 with a direction to the defendants that they shall pay consideration amount of Rs. 1,000/- to the plaintiff with interest at the rate of 6% P. A. from the date of the suit till realisation of the amount and creating the charge over the suit property of the payment of the said amount. The legality and validity of the impugned Judgment and Decree of the first appellate Court is under challenge in this Second Appeal. ( 5 ) THIS Court at the time of admission on 11. 7. 1995 framed the following substantial question of law for its consideration and answer the same as required under proviso to sub-section (5) of Section 100 C. P. C. i) Whether the lower Appellate Court has committed an illegality in holding that the sale-deed in question is a mortgage without any evidence in support of that plea? the learned Counsel appearing on behalf of the defendants had taken notice of the aforesaid substantial question of law framed by this Court to show that there is no substantial question of law has arisen in this appeal for exercise of its power under Section 100 c. P. C. ( 6 ) THE learned Counsel Mr. S. V. Tilgul appearing on behalf of the plaintiff has taken me to the Judgment and Decree passed by the triai Court contending that it is a well considered Judgment as the same based on proper appreciation of evidence on record. The issues which were framed by the trial Court have been rightly answeisd in favour of the plaintiff by recording its findings and he has come to the right conclusion by assigning valid and cogent reasons rejecting the claim of the deceased defendant by passing the Judgment. The issues which were framed by the trial Court have been rightly answeisd in favour of the plaintiff by recording its findings and he has come to the right conclusion by assigning valid and cogent reasons rejecting the claim of the deceased defendant by passing the Judgment. The certified copy of the sale deed Ex. P. 1 is not held to be a nominal sale deed, but rightly held that. it is an outright sale deed executed by the deceased defendant in favour of the plaintiff after the receipt of the consideration of Rs. 1,000/- towards the family legal necessity. The trial Court on proper appreciation of evidence on record has correctly repelled all the contentions of the defendants and granted Judgment and Decree in favour of the plaintiff. It is further stated that in the absence of a written agreement to show that Ex. P1 was a nominal sale deed as a measure of collateral security for the alleged loan amount of Rs. 1,000/- borrowed by the decoded defendant from the plaintiff, it is not possible for the First appelate Court to hold that the transaction between the parties should not have been construed as a mortgage even if two documents are contemporaneously contemplated. The intention of the parties should have been gathered from the document itself. Words used under the document Ex. P1 should be given effect to, extraneous enquiry into or evidence regarding intention of the parties is ruled out at the time of appreciation and consideration of the material evidence on record by the First Appellate Court in exercise of its Appellate jurisdiction. In support of the same submission, he has placed reliance upon the Judgment of this Court reported in pandurang GURUNATH KULKARNI AND OTHERS vs SMT. RUKMINI BAI AND OTHERS and IMAMSAB MALIKSAB HALUKERI and OTHERS vs RASULBI AND ANOTHER. Therefore, learned counsel for the plaintiff submits inviting the attention of this Court with reference to the findings recorded by the trial Court in the judgment and the evidence of the parties on record would show that the findings of the First Appellate Court in the impugned judgment not only suffers from error in law but they are erroneous in law as the First Appellate Court has erred in reversing the findings of the trial Court without there being evidence on record in support of its findings. Therefore, learned Counsel for the plaintiff submits that this Court has rightly framed the substantial question of tew, as extracted above, for its consideration and exercise of power by this court and granted the relief in favour of the plaintiff. ( 7 ) LEARNED Counsel Mr. S. P. Kulkarni, appearing on behalf of Defendants 1 (a) 1 (d) has vehemently contended that the First appellafe Court being the last Court is empowered in law to appreciate facts and material evidence on record has rightly set aside the findings of the Court's Judgment after appreciation of evidence on record taking into consideration of the circumstances prevailed in the case namely, the plaintiff has instituted a suit after the lapse of seven years for delivery of possession as alleged by him and further contended that the law laid down by the Constitutional Bench of the Supreme Court in the case reported in P. L. BAPUSWAMI vs n. PATTAY GOUNDER3 in which Judgment another Judgment of the Apex Court BHASKAR WAMAN JOSHI (deceased) AND others vs SHRINARAYAN RAMBILAS AGARWAL (deceased) and OTHERS interpreting the power of the High Court under section 100 C. P. C. before the amendment to the said Section and section 58 (c) of the Transfer of Property Act, 1982, whether a document is an outright sale deed or a mortgage deed. There are several circumstances to indicate that the document Ex. P. 1 executed by the deceased defendant in favour of the plaintiff was a transaction of mortgage of conditional sale and not a sale with a condition for retransfer of the property by executing the required document. The above said principal has been referred by the Apex Court in the subsequent Judgments reported in VIDHYADHAR vs MANKIK RAO and ANOTHER, MUSHIR MOHAMMED KHAN (dead) BY LRs. , vs SMT. SAJEDA BANO AND OTHERS Learned Counsel for the defendants submits that the findings recorded and the conclusions arrived at by the First Appellate Court in the impugned Judgment is in conformity with the ratio laid down by the Apex Court in the case stated supra and further, he placed reliance upon the Judgment of the Apex Court at paragraphs 13 and 14 reported in ARUMUGHAM (dead) BY LRS. AND OTHERS vs SUNDARAMBAL AND another in support of the proposition that this Court in exercise of its Second Appeal jurisdiction shall not reverse the findings in the impugned Judgment as the First appellate Court being the last fact finding authority on re-appreciation of evidence on record has come to its own conclusion and recorded its findings supported with valid and cogent reasons and set aside the Judgment and Decree of the trial Court, this Court shall not interfere with the impugned Judgment. With reference to the above said contentions urged by the learned counsel appearing on behalf of the parties for and against the substantial question of law framed by this Court, this Court has proceeded to examine the legal submissions of the learned Counsel with reference to the findings recorded by the Courts below and answered the substantial question of law after considering the rival contentions of the parties as hereunder. To appreciate the contentions of the learned Counsel appearing on behalf of the parties, it would be proper and appropriate for this Court to extract the law expounded by the Apex Court with regard to interpretation of the provisions under Section 58 (c) of the Transfer of Property Act by the constitutional Bench of the Apex Court in the case reported in AIR 1966 SUPREME COURT 902. Relevant paragraphs 5 and 6 are extracted as hereunder :-" (5) By Section 58 (c) of the Transfer of Property Act a mortgage by conditional sale is defined as follows: "58. (c) Where the mortgagor ostensibly sells the mortgaged property - on condition that on default of payment of the mortgaged money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. "the proviso to this clause was added by Act 20 of 1929. "the proviso to this clause was added by Act 20 of 1929. Prior to the amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed. The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the Clause is embodied in the document which effects or purports to effect the sale. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor had mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. The distinction between the two transactors is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the document viewed in the light of surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. In the present case, the document Ex. B -1 reads as follows:i have settled to sell to you on this day for a sum of Rs. In the present case, the document Ex. B -1 reads as follows:i have settled to sell to you on this day for a sum of Rs. 4,000/- the undermentioned immovable properties and have received the consideration of rupees four thousand only, as detailed below:- in the matter or my having directed you yourself to pay the sum of Rs. 2,000/-, being my half share payable towards the usufructuary mortgage-deed executed on 7th September 1944, in respect of the share of properties detailed below and in respect of some other share of properties, jointly by me and Palani moopachi, wife of one Palani Mooppan of the aforesaid place in favour of M. Maniyam P. V, Ramaswami Goundar, son of venkatachala Goundar, residing in Pattampalayam village cusba, palladem taluk, for a sum of Rs. 4000/- and registered as document No. 1122 of 1944, Book 1, Volume 210, page 415 and 416 in the office of the Sub-Registrar of Kunnathur to the aforesaid usufructuary mortgagee, get release of the properties mentioned herein and take possession of the same, the amount received by me is Rs. 2,000/ -. The amount which I have received in cash on this day is Rs. 2,000. As, in all, I have received the sale consideration of Rs. 4,000/- as detailed above, you yourself shall, in future, hold and enjoy absolutely the undermentioned properties. In future, neither myself nor my heirs shall have any right or future claim, whatever, in respect of these properties. There is no other encumbrance, whatever, except the encumbrance mentioned above, in respect of these properties. In case anything is left out, I am bound to get the same discharged from and out of my other properties. Whereof, in all these, and in the well in good condition, situate in Government Survey No. 93/1 and in the coconut palmyrah, tamarind and wood-apple trees and in the fruit bearing and timber trees, which are in the aforesaid fields, the half-share in common. In future I have neither share nor right, whatever, in the aforesaid fields. The aforesaid Palani Moopachi shall discharge the above mentioned balance usufructuary mortgage amount of Rs. 2,000/- from and out of the balance of the usufructuary of mortgage - properties. In future I have neither share nor right, whatever, in the aforesaid fields. The aforesaid Palani Moopachi shall discharge the above mentioned balance usufructuary mortgage amount of Rs. 2,000/- from and out of the balance of the usufructuary of mortgage - properties. Should I pay in cash the aforesaid sale consideration of rupees four thousand after a period of five years within a period of seven years from the date of the execution of the deed, during the date of expiry of the said deed of any year (the said properties) should be reconveyed for the very same amount to me. This condition is not valid after the aforesaid period. " (6) We consider that in the present case there are several circumstances to indicate that Ex. B-1 was a transaction of mortgage by conditional sale and not a sale with a condition for retransfer. In the first place, there is the important circumstance that the condition for repurchase is embodied in the same document. In the second place, there is the significant fact that the consideration for Ex. B-1 was Rs. 4,000, while the real value of the property was, according to the Munsiff and the Subordinate judge, Rs. 8,000. The High Court has dealt with this question and reached the finding that the value of the property was Rs. 5,500, but it is submitted by Mr. Ganapathi Iyer on behalf of the appellant that the question of valuation was one of fact and the high Court was not entitled to go into the question in the second appeal. The criticism of learned Counsel for the appellant is justified and we must proceed on the basis that the valuation of the property was Rs. 8,000 and since the consideration for Ex. B- 1 was only Rs. 4,000 it was a strong circumstance suggesting that the transaction was mortgage and not an out-right sate. In the third place, there is the circumstance that the patta was not transferred to the 1st defendant after the execution of Ex. B-1 by palani Moopan. It appears that defendant No. 1 did not apply for the transfer of patta and the patta admittedly continued in the name of Palani Moopan even after the execution of Ex. B-1. Exhibits A-6 and A-7 are certified copies of thandal extract of patta for the years 1945-54 and they prove this fact. B-1 by palani Moopan. It appears that defendant No. 1 did not apply for the transfer of patta and the patta admittedly continued in the name of Palani Moopan even after the execution of Ex. B-1. Exhibits A-6 and A-7 are certified copies of thandal extract of patta for the years 1945-54 and they prove this fact. These exhibits also show that the plaintiff had obtained patta for the land on the basis of Ex. A-2. The registered deed of transfer of patta was executed by the sons of Palani Moopan in favour of the plaintiff. There is also the circumstance that the kist for the land was continued to be paid by Palani Moopan and after his death, by the sons of Palani Moopan. Lastly, there is the important circumstance that the consideration for reconveyance was Rs. 4,000, the same amount as the consideration for Ex. B-1. Having regard to the language of the document Ex. B-1 and examining it in the light of these circumstance we are of the opinion that the transaction under Ex. B -1 was mortgage by conditional sale and the view taken the by the High Court with regard to the legal effect of the transaction must be reversed. It follows, therefore, that the plaintiff is entitled to a preliminary decree for redemption under 0. 34, R. 7, Civil Procedure Code for taking accounts and for declaration of the amounts due to the 1st defendant under ex. B-1. ( 8 ) FOR the purpose of finding out whether the findings of the Lower First Appellate Court on interpretation of the words used in the recitals of the document Ex. P1, the consideration towards the property in question paid by the plaintiff towards the sale transaction as claimed by the plaintiff and having regard to the evidence that it was only a nominal sale deed as a collateral security document to reconvey the property after receipt of Rs. 1,0007- the loan amount received by the deceased defendant, this Court has examined the findings of the First Appellate Court on the relevant points framed by it and answered the same in the impugned Judgment. At paragraph 1. 1,0007- the loan amount received by the deceased defendant, this Court has examined the findings of the First Appellate Court on the relevant points framed by it and answered the same in the impugned Judgment. At paragraph 1. While answering point No. 1 with reference to the evidence of P. W. 1 and the sale deed after the registration of the sale deed in respect of the immovable property, the concerned Sub- registrar has tailed to intimate to the concerned authorities for change of the name of the plaintiff in the concerned register regarding the transfer of the title of the property and further recorded a finding of fact that the plaintiff has not placed any documentary evidence to satisfy the Court that he came in possession of the suit property on the date of the execution of the sale deed and he was enjoying the same uptill a year prior to the institution of the suit. Except a bald statement of plea which according to the First Appellate Court is an interested statement of the Special Power of Attorney who is examined in the trial Court as PW. 1 and further proceeded to consider the case of the parties and recorded a finding that if the deceased defendant has remained in his possession of seven years, as asserted by the plaintiff, he would have paid the taxes of the suit property atleast for one or two years during that period. Taking the aforesaid relevant facts and circumstances of the case, the First appellate Court has rightly recorded a finding of fact that there is no iota of evidence to accept the contention of the plaintiff that he was dispossessed from that suit house by the Police by a year prior to the institution of the suit. With reference to the said finding, the defence of the deceased defendant with reference to the material evidence on record has recorded a finding of fact that he did not actually part with possession of the suit property in favour of the plaintiff under the sale deed Ex. P. 1 nor he dispossessed the plaintiff at the instance with the aid of the Police as pleaded by him and a further finding is recorded. P. 1 nor he dispossessed the plaintiff at the instance with the aid of the Police as pleaded by him and a further finding is recorded. The case of the defendants is more probable than the case of the plaintiff and further held that as per the assertions of the plaintiff he had come into possession of the suit schedule property as per the recitals of the sale deed and he has been dispossessed after a period of seven years, as alleged by him. In that regard, the first Appellate Court has held that the trial court has come to the right conclusion holding that the plaintiff has failed to prove his alleged dispossession from the suit schedule property but it has straightaway come to the conclusion without considering, appreciating the evidence on record simply placing reliance on the recitals of the sale deed and granted the relief to the plaintiff. The First Appellate Court after considering the finding recorded in the Trial Court Judgment it has recorded a finding holding that the plaintiff did not come in actual possession of the suit schedule property on the date of the execution of the sale deed. Therefore, the finding recorded by the trial Court that the plaintiff has come into possession of the suit schedule property on the date of the sale deed has been rightly held to be an erroneous finding and accordingly point No. 1 was rightly answered by the first Appellate Court against the plaintiff. Under paragraph 11, point No. 2 has been rightly answered by the first Appellate Court with reference to the case pleaded by the parties and held that the deceased defendant had no intention to sell the property and the said transaction is not an outright sale is based on the proper interpretation of the terms and conditions incorporated in the sale deed and after correctly ascertaining the intention of the parties it has been held that document at Ex. P1 a collateral security document executed by the deceased defendant in favour of the plaintiff. Therefore, it has been rightly held that the transaction is in the nature of the mortgage but not outright sale of the suit schedule property in favour of the plaintiff. Further, the first Appellate Court has held that though the recitals in ex. P1 a collateral security document executed by the deceased defendant in favour of the plaintiff. Therefore, it has been rightly held that the transaction is in the nature of the mortgage but not outright sale of the suit schedule property in favour of the plaintiff. Further, the first Appellate Court has held that though the recitals in ex. P1 gives an impression that it is an outright sale, it has been held it is not an outright sale on the consideration of the positive and substantive evidence on record particularly with regard to the actual delivery of possession of the house property in favour of the plaintiff in pursuant to the sale deed and the said point is also rightly answered against the plaintiff. With regard to point No. 3 having answered point Nos. 1 and 2 in favour of the deceased defendant by recording the reasons by the first appellate Court with reference to the proceedings before the Sub-Divisional Magistrate, Jamkhandi, under the provisions of the Karnataka Debt Relief Act, having regard to the facts and circumstances of the case with a view of avoid multiplicity of the litigation, the relief sought for by the plaintiff has been molded and rightly set aside the Judgment and Decree of the trial Court. After recording a finding by this Court with reference to the impugned Judgment on the basis of the law laid down by the apex Court referred to supra, I have to record a finding that the constitional Bench Judgment of the Apex Court in the case of p. L. BAPUSWAMI vs N. PATTAY GOUNDER the ratio laid down in the said case has been followed by the subsequent Judgments of the Supreme Court referred to supra which are mentioned in the earlier paragraph of the Judgment where in contentions urged by the defendants Counsel on behalf of the defendant with all force applicable to the facts of this case. In view of the clear pronouncement of law by the Apex Court and this Court jayashankarappa B. AND OTHERS vs D. S. GULWADI the legal submission made on behalf of the defendants are well founded, the same must be accepted. In view of the clear pronouncement of law by the Apex Court and this Court jayashankarappa B. AND OTHERS vs D. S. GULWADI the legal submission made on behalf of the defendants are well founded, the same must be accepted. And further, the learned Counsel appearing on behalf of the deceased defendant has rightly placed reliance upon the Judgment of the Apex Court in ARUMUGHAM vs sundarambal wherein the Apex Court has clearly laid down the law regarding the jurisdiction power of this Court under Section 100 cpc in the Second Appeal. After going through the aforesaid judgment particularly the paragraphs 13 and 14, in my considered view, the First Appellate Court on proper appreciation of evidence on record being the last fact finding Court has rightly annulled the findings of the trial Court by recording its findings after coming to the right conclusion and it has assigned valid and cogent reasons. Therefore, it is not for this Court to go in the correctness of the findings recorded by the First Appellate Court as this Court power is very limited required to answer as to whether the substantial question of law would arise in this case as framed by this Court at the time of admission for the reasons recorded by me in the earlier paragraphs with reference to the rival contentions and referring to the Judgments of the Apex Court with reference to the provision of Section 58 (c) of the Transfer of Property Act, the transaction between the plaintiff and the deceased defendant has been rightly held as a mortgage but not an outright sale transaction in respect of the suit schedule property. The said findings are in conformity with the law laid down by the Apex Court in the case of P. L. BAPUSWAMI vs N. PATTAY gounder, which Judgment has been followed by the subsequent judgments of the Apex Court. Therefore, in my considered view, the submission made on behalf of the plaintiff that there is a substantial question of law arisen in this case is wholly untenable in law and devoid of merit. Hence the same cannot be accepted. ( 9 ) FOR the reasons stated supra, the plaintiff must fail. Accordingly, I pass the following order. ( 10 ) THE Regular Second Appeal is Dismissed. --- *** --- .