Judgment ( 1. ) THIS appeal under Section 100, Civil Procedure Code is directed against the judgment and decree 2-4-2998 passed in Civil Appeal No. 32-A/90 on the file of Second Addl. District Judge, Hoshangabad, arising out of the judgment and decree passed in Original Suit No. 32-A/85 on the file of Civil Judge, Class II, seoni Malwa. ( 2. ) IN the course of this judgment, parties will be referred to by the ranks assigned to them in the Trial Court. ( 3. ) ORIGINAL plaintiff Kaluram now represented through Shanti Bai, kumari Rekha Bai, Rameshwar and Jagnnath filed a suit against Kishanlal (now represented through legal representative) Balram, Ghambhir Singh and Narain for grant of injunction restraining the defendants from interfering with the possession of the suit property stating that Raghunath Jatt father of plaintiff kaluram was a recorded occupancy tenant of Khasra No. 117 area 0. 06 acres and 118 area 0. 09 total 0. 15 acres of Mouja Chapdagahan Tehsil Seoni, Malwa, district Hoshangabad. The land has several houses, Badi, water pump and fruit bearing trees. Raghunath died in the year 1948. His son Kaluram succeeded him. After the death of Raghunath, Kaluram became occupancy tenant and by operation of M. P. Land Revenue Code, 1959 became the Bhumiswami of the suit land. In July, 1985 deceased defendant Kishanlal and his three sons Balram, Rameshwar and Gambhir Singh threatened Kaluram of dispossession from the suit property, therefore, Kaluram filed the present suit claiming permanent injunction restraining Kishanlal and his sons from interfering with his possession over the suit property. ( 4. ) COMBATING the claim of plaintiffs the defendants submitted their written statement stating that Raghunath who was the occupancy tenant of the suit land sold the disputed land in favour of Nathaji, father of defendant No. 1. Kishanlal vide sale deed dated 7-9-1933 for a consideration of Rs. 400/- and put him in possession. Thereafter Kaluram who shifted from Chapdagahan to dewas, now part of District Harda and returned after 9 years was inducted as a licensee by Nathaji and his son Kishanlal. ( 5. ) AFTER the filing of the written statement plaintiffs amended the plaint stating that the sale deed (Exh. 400/- and put him in possession. Thereafter Kaluram who shifted from Chapdagahan to dewas, now part of District Harda and returned after 9 years was inducted as a licensee by Nathaji and his son Kishanlal. ( 5. ) AFTER the filing of the written statement plaintiffs amended the plaint stating that the sale deed (Exh. D-1) alleged to have been executed by raghunath in favour of Nathaji was a nominal document and was executed as collateral security for repayment of loan advanced by Nathaji to Raghunath, that the sale was never acted upon for over 52 years and also averred that the plaintiffs have perfected their by adverse possession. The alleged licence to occupy the house by Kaluram was denied. ( 6. ) DURING the pendency of the suit through registered sale deeds Exhs. P-16 and P-17 both dated 16-8-1985 Kaluram sold the property in favour of rameshwar and Jagannath who joined as plaintiff Nos. 2 and 3. Kaluram died on 10-3-1988 resulting in substitution of his widows Shantibai and minor daughters as plaintiff Nos. 1 (a) and (b), Narain Prasad who claimed himself to be the adopted son of deceased Kaluram was joined as defendant No. 5. During the pendency of the suit Kishanlal also died giving rise to substitution of his widow, sons and daughter as defendant Nos. 1 (a) to (e), while his three sons defendant nos. 2 to 4 were already on record. ( 7. ) ON the pleadings of the parties the Trial Court framed as many as 7 issues and 4 additional issues and recorded the findings that the plaintiffs are the owner and in possession of the suit property, that the sale deed alleged to have been executed by Raghunath in favour of Nathaji was for the security of the loan advanced by Nathaji and the transaction in fact was of mortgage. The Trial Court also recorded a finding that the plaintiff perfected the title by adverse possession. The Trial Court rejected the case of defendants that Kaluram was inducted as licensee. ( 8. ) AGAINST the judgment and decree passed by the Civil Judge Class II, seoni Malwa the defendants filed an appeal before the Addl. District Judge hoshangabad who allowed the appeal reversing the judgment and decree of the trial Court holding that the document executed by Raghunath in favour of nathaji was a sale deed. ( 8. ) AGAINST the judgment and decree passed by the Civil Judge Class II, seoni Malwa the defendants filed an appeal before the Addl. District Judge hoshangabad who allowed the appeal reversing the judgment and decree of the trial Court holding that the document executed by Raghunath in favour of nathaji was a sale deed. After few years of the sale, Kaluram was allowed to live in the suit house as licensee. The Lower Appellate Court also recorded a finding that plaintiffs have failed to prove that they perfected their title by adverse possession. ( 9. ) IT is this judgment and decree of the Lower Appellate Court which is the cause of grievance of the plaintiffs (appellants herein ). ( 10. ) THE appeal was admitted on the following substantial questions of law:- " (i) Whether the Lower Appellate Court committed an error of law by treating the original plaintiff No. 1 as licensee of original defendant No. 1 ? (ii) Whether the conclusion arrived at by the Lower Appellate Court is on improper consideration of the revenue record ?" ( 11. ) I have heard Shri Ravish Agarwal, learned Senior Counsel with Shri prannay Verma, Advocate for the appellants and Shri A. D. Deoras for the respondents and perused the records of both the Courts below including the impugned judgment. ( 12. ) LEARNED Counsel appearing for appellants vehemently submitted that the finding of the Lower Appellate Court that the document Exh. D-1 was a sale and not a mortgage is contrary to the evidence and other material on record. The recitals in Exh. D-1 and other circumstances appearing in the case unmistakably show that document Exh. D-1 purporting to be sale is nominal and was never acted upon by the parties. ( 13. ) LEARNED Counsel for appellants further submitted that the document Exh. D-1 was executed in the year 1933 and after such a long lapse of time it was too much to accept direct evidence of the sale being nominal Nathaji and his successors never took any step for mutation. ( 14. ) IT is true that mere registration of a document does not necessarily operate to transfer or affect the property dealt with by it without regard to the intention of the parties to the document. ( 14. ) IT is true that mere registration of a document does not necessarily operate to transfer or affect the property dealt with by it without regard to the intention of the parties to the document. A party to the registered document can plead that the document in question was a mere paper transaction and it was never acted upon. The Court has power to see intention of the parties in each particular case but where document is duly executed and registered normal presumption would be that the parties intended title to pass forthwith. ( 15. ) ORDINARILY upon the due execution and registration of the sale deed the title in the property sold passes from the vendor to the vendee. Where a sale deed was properly executed and registered and the vender recited in the deed and admitted before the Sub Registrar that he had received the entire consideration the terms of the deed coupled with the acknowledgment before the Sub-Registrar show that the vendor intended to divest and did indeed divest himself of the ownership which immediately vested in the vendee. ( 16. ) ON the face of the contents of Exh. D-l a very heavy burden lies on the plaintiffs who allege that the registered document not intended to be acted upon. It was for the plaintiffs to prove by giving convincing evidence that the document Exh. D-1 was nominal and was not intended to be used as sale deed. Original plaintiff Kaluram was examined before the Trial Court as P. W. 1. In the deposition sheet his age has been shown to be 70 years. His, deposition was recorded on 30-11-1987 therefore, his age on the date of sale deed comes to about 16 years. He was sufficiently grown up on the date of sale. He also admitted that till the age of 20 he lived in the suit house. In the age of 20 years he went to Dewas Tehsil Harda. He also admitted that when he left for Dewas his father was alive. Had the document of sale been a document of mortgage the natural conduct of Raghunath would have been to at least inform his sons in this regard. In the age of 20 years he went to Dewas Tehsil Harda. He also admitted that when he left for Dewas his father was alive. Had the document of sale been a document of mortgage the natural conduct of Raghunath would have been to at least inform his sons in this regard. The fact that the executant of the document did not inform his sons and other members of the family that the document was intended to be used as mortgage suggests that in fact the sale deed was executed. ( 17. ) UNDER the present law registration amounts to implied notice to others persons, subsequently acquiring interest in the property. Registration of document itself is notice of the sale to the persons affected by the sale. Kaluram did not take any action for getting the document declared as mortgage deed. On the contrary he has expressed his ignorance about the execution of the document. Long silence on the part of Kaluram goes to establish that the parties to the document intended the title to pass forthwith. ( 18. ) LEARNED Counsel for appellants also submitted that if the document exh. D-1 would have been executed as a sale deed, the natural conduct of nathaji or his successors would have been to get their names mutated in revenue records and they would have paid the land revenue. ( 19. ) THE contention is not acceptable. Normally after getting a registered document executed the vendee becomes care free and it is not obligatory for the purchaser to apply for mutation. In a country like India, where most of the people are uneducated it cannot be laid down as a general proposition that the failure on the part of the purchaser to get the name mutated in the revenue record, municipal record of Panchayat record shall be a ground to infer that the document was not intended to be a sale deed. ( 20. ) THE entries in the revenue records or in the record of municipality or Panchayat record are made for fiscal purpose. Such entries cannot be a source of title. In Balwant Singh and another Vs. Daulat Singh, AIR 1997 SC 2719 and state of Himachal Pradesh Vs. ( 20. ) THE entries in the revenue records or in the record of municipality or Panchayat record are made for fiscal purpose. Such entries cannot be a source of title. In Balwant Singh and another Vs. Daulat Singh, AIR 1997 SC 2719 and state of Himachal Pradesh Vs. Keshavram, AIR 1997 SC 2181 , cited by the learned Counsel for the respondent it has been held that the entry in the revenue papers recording some bodies name can neither create nor extinguish the title of that person. The failure to apply for the mutation by no stage of imagination can form the basis for declaration that the document which is ostensibly a sale deed was in fact a mortgage. ( 21. ) IN the present case it is also necessary to keep in mind that major part of the property in dispute is house property and only a small portion is the land on which the land revenue was payable. Apparently, the land revenue must have been nominal. When the major portion was house the failure on the part of the purchasers to get their names mutated in the revenue records for a small fraction of property will not be a strong circumstance to infer that the document was not acted upon. The plaintiffs cannot make capital out of the failure on the part of the vendee to apply for mutation. ( 22. ) OWNING an agricultural property and getting the same entered in revenue records are two different and distinct things. Mutation entry does not confer right of title of property. Similarly, absence of mutation in the revenue records will not in any manner make a document of sale to be a document of mortgage. In addition to the judgments cited by Shri Deoras, the Counsel for the appellant I wish to rely on two decisions of the Apex Court in Sawarni (Smt.) Vs. Inder Kaur (Smt.) and others, (1996) 6 SCC 223 and Suman Verma Vs. Union of india and others, (2004) 12 SCC 58 . In Dalip Singh and others Vs. Sikh Gurdwara prabandhak Committee and others, (2003) 10 SC 352, it has been held that entries in revenue records cannot prove title to the property unless supported by other evidence. On the same principle the absence of entries in the revenue records will not effect the title of the purchaser in the property purchased. In Dalip Singh and others Vs. Sikh Gurdwara prabandhak Committee and others, (2003) 10 SC 352, it has been held that entries in revenue records cannot prove title to the property unless supported by other evidence. On the same principle the absence of entries in the revenue records will not effect the title of the purchaser in the property purchased. ( 23. ) ADMITTEDLY, parties to the sale deed were near relations. There was no reason for the purchaser to harbour any doubt. Merely because no attempt was made for the mutation, it cannot be inferred that the document was never intended to be acted upon as sale deed. Factors suggesting sale out weight the factors suggesting mortgage. When ostensible the document is a sale deed it cannot be treated as mortgage only on the ground that the name of the vendee was not mutated. ( 24. ) THE contention of the learned Counsel for appellants that transaction was in fact a mortgage cannot be accepted because of the proviso under clause (c) of Section 58 of the Transfer of Property Act also which provides that a transaction shall not be deemed to be a mortgage unless the condition that on payment being made the sale shall become void is embodied in the document which effects or purposes to effect the sale. It is only where the deed of sale and the contract to repurchase are parts of one and the same transaction, the sale could be a mortgage. Clear and express evidence should be there to replace the presumption of the document being a sale. ( 25. ) HAD the document been a mortgage, natural conduct of the plaintiffs would have been to sue for redemption. It is true that a mere delay in launching the suit for redemption would not make the transaction a sale but if from inception there was a mortgage and no redemption was sought since 1933 till date it is a circumstance which must call for scrutiny. Unexplained delay must receive its due weight as one of the relevant circumstances by way of conduct. ( 26. ) WHERE the document is apparently a sale, the onus is on other person who allege it to be a mortgage to prove it. ( 27. Unexplained delay must receive its due weight as one of the relevant circumstances by way of conduct. ( 26. ) WHERE the document is apparently a sale, the onus is on other person who allege it to be a mortgage to prove it. ( 27. ) IT is true that the form of transaction is not final test of determining whether it is a sale or mortgage and the true test is the intention of the parties in entering the transaction but where no reliable evidence has been given to prove that the document was intended to be a mortgage Court cannot safely depart from the contents of the documents. The Lower Appellate Court rightly came to the conclusion that plaintiffs have failed to prove that the parties intended that the transfer was only by way of security. If on the face of it the document purports to be sale it cannot be turned into mortgage by reference to a host of extraneous and irrelevant considerations. ( 28. ) THE question whether a document which is ostensibly a sale deed is executed only as a pretence for a mortgage deed in every case is a question of fact to be determined on the contents of the document and on the surrounding circumstances. The intention of the parties should primarily be gathered from the document itself. The terms of the sale deed are clear. The document reveals that the intention of the parties to document was to treat document as an out and out sale. ( 29. ) THOUGH oral evidence of such intention is admissible by virtue of section 92 of the Evidence Act but such oral evidence must be convincing. In the present case no oral evidence has been given. Merely because the document is an old document it will not absolve the party claiming that the document was intended to be only pretence from its responsibility to prove the facts alleged. ( 30. ) IN the present case no satisfactory evidence has been led by the plaintiff to show that Raghunath, the father of plaintiff Kaluram intended to executed the mortgage deed. ( 31. ( 30. ) IN the present case no satisfactory evidence has been led by the plaintiff to show that Raghunath, the father of plaintiff Kaluram intended to executed the mortgage deed. ( 31. ) PRIMA facie an absolute conveyance containing nothing to show that the relation of debtor and creditor is to exist between the parties does not cease to be an absolute conveyance and become a mortgage, merely because the vendee did not get his name mutated. The finding recorded by the Lower appellate Court that the plaintiff failed to prove that Exh. D-1 was intended to be a mortgage deed is impregnable. ( 32. ) ON my query as to whether there is any other evidence on the basis of which it can be said that the sale deed dated 7- 9-1993 Exh. D-1 was a nominal one, learned Counsel for the plaintiffs-appellants pointed out that the possession was never delivered to the purchaser. This also is not acceptable. In the document itself, it has been specifically mentioned that the possession of the property in dispute was also delivered to the purchaser. Shortly after the execution of the sale deed Raghunath shifted to Dewas. No evidence has been given to the effect as during the period when Kaluram or his father remained at Dewas who was in possession of the suit property. There is no evidence that during this period the property did not remain with the defendants or their predecessors. The Lower Appellate Court has recorded a finding that on return of Kaluram from Dewas after span of 9 years Kaluram being the relatives of the purchasers was allowed to live in the suit house as licensee, therefore, it cannot be said that the possession was not delivered at the time of execution of the sale deed. ( 33. ) LEARNED Counsel for the appellant also submitted that the finding of the Lower Appellate Court that the possession of the suit house was delivered to Kaluram as licensee also is contrary to the material on record and is indefensible. ( 34. ) THE contention is not acceptable. As has been stated earlier the document Exh. D-1 reveals that the possession of the suit property was delivered by the vendor to the vendee. Thereafter, Raghunath and his son kaluram left their village and shifted to Dewas and lived there as long as for a period of 9 years. ( 34. ) THE contention is not acceptable. As has been stated earlier the document Exh. D-1 reveals that the possession of the suit property was delivered by the vendor to the vendee. Thereafter, Raghunath and his son kaluram left their village and shifted to Dewas and lived there as long as for a period of 9 years. During this period the possession remained with the defendants. If on his return from Dewas Kaluram was permitted to live in a portion of the suit house, there is nothing unnatural in it because the parties are near relatives. Therefore, the finding of the Courts below that the possession was delivered as licensee cannot be found faulted with. ( 35. ) LEARNED Counsel for the appellant also submitted that the First appellate Court while reversing the judgment of the Trial Court did not display conscious application of mind. Where the Trial Court decreed the suit expressly holding that the document Exh. D-1 was intended to be a mortgage and the possession of Kaluram was never as license while reversing the finding of fact it should have assigned its own reasons for the different findings. The Counsel relied on Santosh Hajari Vs. Purushttam Tiwari, (2001) 3 SCC 179 . ( 36. ) THE contention is not acceptable. The Trial Court has recorded the reasons for reversing the reasons. The Lower Appellate Court has not reversed the judgment on the basis of credibility of witness. When the Lower Appellate court has recorded a finding of fact after proper appreciation of material on record, this Court will have jurisdiction of interfering under Section 100, Civil procedure Code only in a case where substantial question/s of law is/are involved. The effect of the amendment made in Section 100, Civil Procedure code in the year 1976 is that the High Court would be justified in allowing the second Appeal only when a substantial question of law is involved. It has now been conclusively settled that the third Court cannot entertain an appeal upon question as to the soundness of the findings of fact by the Second Court. If there is evidence to be considered the decision of the Second Court however unsatisfactory. It has now been conclusively settled that the third Court cannot entertain an appeal upon question as to the soundness of the findings of fact by the Second Court. If there is evidence to be considered the decision of the Second Court however unsatisfactory. Where the findings of facts by the Lower Court are based on evidence, the High Court in Second Appeal cannot substitute its own finding on re-appreciation of evidence merely on the ground that another view was possible. ( 37. ) THIS brings me to the disposal of the application under Order 41 rule 27. The documents which the appellant desires to file in the second appeal are the copies of Khasra. These documents were in power of the appellant. No reason whatsoever has been assigned in the application of affidavit as to why this document could not be filed before the Trial Court or the First Appellate Court. Even otherwise, it has been discussed in detail in earlier paragraphs that the absence of mutation in revenue records along will not be a reason to infer that document Exh. D-1 was not intended to be acted upon. The application is, therefore, dismissed. ( 38. ) FOR the foregoing reasons I find myself entirely in agreement with the view taken by the Lower Appellate Court. The appeal is devoid of any merit and is liable to be dismissed. It is dismissed accordingly, though, without any order as to costs in the facts and circumstances of the case. Second Appeal dismissed.