JUDGMENT 1. This appeal under sec. 100 of the Code of Civil Procedure is at the instance of defendant No.3. This appellant who is described as defendant No.3 was not originally joined in the suit but came to be joined in the first appeal and joined by amendment in the suit pending the first appeal. 2. Respondent No.1-original plaintiff filed Regular Civil Suit No. 11 of 1994 for releasing the suit property from conditional sale and for redemption of the mortgage of the suit property. 3. Case of the plaintiff in his suit is to the effect that there was agreement executed between his father and defendant No.1 on 7.1.1994 in respect of the suit property where-under the suit property was given on conditional sale to defendant No.1 for Rs.14,999.00 and as per the terms and conditions of the said agreement, defendant No.1 was given limited rights for 20 years and on payment of the said amount, defendant no.1 was to re-deliver the suit property to the plaintiff. It is further averred that the plaintiff had gone to defendant No.1 for paying the said amount but defendant no.1 refused to take the said amount by stating that since period under the agreement was expiring on 7.1.1994, he was not accepting the amount before that date. It is further averred by the plaintiff that on 4.1.1994, the plaintiff and his relatives had gone to the house of defendant no.1 with Rs.14,999.00 and at that time, defendant No.1 had stated that the suit property was not in his possession but it was in possession of defendant no.2 named Ramabhai Somabhai and, therefore, since he was not in possession of the suit property, he was not required to do anything. It is further case of the plaintiff that since no transaction was entered with defendant no.2 by the father of the plaintiff and since the defendant No.1 was having restricted rights and was not entitled to pass possession to the defendant No.2, suit is required to be filed requiring the defendant No.1 to take possession from defendant No.2 and to give it to the plaintiff by accepting Rs.14,999.00 and for permanent injunction against the defendant No.2 not to enter upon the suit land. 4. Suit was resisted by defendant no.1 by filing written statement at Exh. 4. Suit was resisted by defendant no.1 by filing written statement at Exh. 50 inter-alia stating that the suit of the plaintiff suffered by misjoinder and non-joinder of the parties, that the plaintiff was not authorized to file the suit as heir of deceased Naranbhai, that the say of the plaintiff that the suit property was handed over by father of the plaintiff to defendant no.1 under agreement dated 7.1.1994 for a period of 20 years by way of conditional sale by accepting Rs.14,999.00 is not correct, that the suit property was cultivated by father of defendant no.1 named Kasha Rabari as tenant even before 7.1.1974 and on his death, defendant no.1 .came to occupy the land as tenant. It is further stated by defendant no.1 that the suit property was sold to appellant (defendant No.3) on 30.3.91 in presence and with consent of plaintiff for Rs.25000.00 and since then the possession is also with the appellant (defendant No.3). It is lastly stated that the owner of the land was one Madhabhai Jethabhai and plaintiff or his father was never the owner or in possession of the suit land. The plaintiff is, thus, not entitled to file the suit. 5. Defendant No.2 did not contest the suit. His right to file the written statement was closed. 6. On the basis of the pleadings of the parties, the learned trial Judge framed issues at Exh. 42 in vernacular which when translated into English read as under: (1) Whether the plaintiff proves that the suit land was given by the deceased father of the plaintiff to defendant No.1 by conditional sale for 20 years for Rs.14,999/-? (2) Whether the plaintiff proves that the possession of the suit field was handed over by defendant No.1 to defendant No.2? (3) Whether the plaintiff proves that the defendants are not ready to release the property from mortgage inspite of paying the amount? (4) Whether the plaintiff is ready to pay the amount of mortgage to the defendants? (4A) Whether the suit of the plaintiff is barred by limitation? (4B) Whether the suit of the plaintiff is barred by the principles of mis-joinder and non-joinder of the parties? (5) Whether the plaintiff is entitled to redeem the suit land from mortgage? (6) What order and decree? 7. (4A) Whether the suit of the plaintiff is barred by limitation? (4B) Whether the suit of the plaintiff is barred by the principles of mis-joinder and non-joinder of the parties? (5) Whether the plaintiff is entitled to redeem the suit land from mortgage? (6) What order and decree? 7. On appreciation of the evidence, learned trial Judge came to the conclusion that the plaintiff has proved that the suit property was given by way of conditional sale for 20 years by accepting Rs.14,999.00 from defendant No.1. Learned trial Judge further came to the conclusion that it has not come on record as to how defendant No.2 was handed over possession of the suit property but from the document Exh. 89 and 90, possession of the appellant was found. Learned trial Judge further observed that the plaintiff has proved that the plaintiff had gone to give the amount under the deed of conditional sale to defendant no.1 but defendant No.1 had refused to accept the said amount and the plaintiff has deposited such amount before commencement of the evidence of witnesses. Learned trial Judge then further came to the conclusion that since the plaintiff has filed the suit within the period of 20 years, suit of the plaintiff was within the time limit. The learned trial Judge however came to the conclusion that the plaintiff has not produced any evidence to establish that he was the owner of the suit land. The learned trial Judge further observed that simply because the father of the plaintiff had executed conditional sale in favour of defendant No.1, is no ground to believe that the father of the plaintiff was owner of the suit land. The learned trial Judge has further recorded that in the revenue record Exh. 86 to 89, suit property was initially entered in the name of one Madha Jetha and then name of the father of defendant No.1 and then the name of defendant No.1 was entered into and lastly the name of the appellant was found in the revenue record. The plaintiff has not joined necessary parties in the suit. On above said reasoning and conclusion, the learned trial Judge ultimately dismissed the suit by judgment and decree dated 5th July, 1997. 8. The plaintiff therefore filed Regular Civil Appeal No. 27of 1997. The plaintiff has not joined necessary parties in the suit. On above said reasoning and conclusion, the learned trial Judge ultimately dismissed the suit by judgment and decree dated 5th July, 1997. 8. The plaintiff therefore filed Regular Civil Appeal No. 27of 1997. Though it is one of the grounds taken by the plaintiff in his appeal that the sale deed executed in favour of the appellant by defendant No.1 was null and void as defendant no.1 was holding the suit property under the document of conditional sale and on account of non joinder of such transferee, his suit should not have been dismissed, still the plaintiff has joined the appellant in the first appeal by making application Exh. 12 stating that if the appellant is not joined in the appeal and in the suit, the plaintiff might suffer irreparable loss and that the plaintiff might be deprived of the ultimate fruits of decree. After the appellant was brought on record of the first appeal, notice was issued to the appellant but the appellant did not appear before the first appellate court though he was duly served with the notice. 9. Learned Appellate Judge came to the conclusion that the defendant No.1 except filing the written statement, not challenged the authority of the father of the plaintiff to execute deed Exh. 56. The learned Appellate Judge further recorded that the defendant No.1 has not entered into the witness box nor even examined any witness to prove that he was having independent title to the suit property. The learned appellate Judge also recorded that the subject matter of the suit was not about simple possession or the ownership of the parties and, therefore, the dispute could not have been decided by referring to the revenue entries in the revenue record. Learned appellate Judge also recorded that the plaintiff has not admitted the sale transaction with appellant and he has specifically denied allegation about such transaction in favour of the appellant. Learned appellate Judge then further recorded that after the application of the plaintiff was allowed to join the appellant in the first appeal, the appellant has not appeared before the court though was duly served with the notice. Learned appellate Judge then further recorded that after the application of the plaintiff was allowed to join the appellant in the first appeal, the appellant has not appeared before the court though was duly served with the notice. On the above said conclusion reached by the learned appellate Judge, ultimately, the learned appellate Judge allowed the appeal and directed the defendants to hand over possession of the suit property to the plaintiff and permitted defendant .no.1 to withdraw the amount deposited by the plaintiff pursuant to the suit agreement. It is this judgment and decree passed by the first appellate court which is under challenge in this appeal. 10. This appeal was admitted on the following substantial questions of law: (1) Whether the appellant is entitled to have opportunity of being heard as he was joined as party to the suit only in appeal? (2) Whether the case advanced by the party should be totally discarded if he does not step in witness box? (3) Whether the respondent No.1 though not the owner is in law entitled to possession of the property in question? (4) Whether the respondent No. 2 is precluded from challenging the authority of respondent No.1 to enter into the agreement? 11. I have heard the learned advocates for the parties. 12. Learned advocate Mr. Salil Thakore appearing for learned Advocate Ms. Megha Jani for the appellant submitted that from the very inception of the suit, it was disclosed by defendant No.1 in his written statement that the appellant had purchased the suit property by registered sale deed from defendant No.1, still the plaintiff chose not to join the appellant in the suit proceedings. Since defendant No.1 had lost interest in the suit property and since the appellant had acquired right, title and interest in the suit property, the appellant was necessary party .for deciding the issues involved in the suit. Mr. Thakore submitted that in the suit filed by the plaintiff, the plaintiff was not only required to prove his title to the suit property but was also required to prove his entitlement to get back the suit property under the deed of conditional sale at Exh. 56. Mr. Thakore submitted that in the suit filed by the plaintiff, the plaintiff was not only required to prove his title to the suit property but was also required to prove his entitlement to get back the suit property under the deed of conditional sale at Exh. 56. In such circumstances, when it was brought to the notice of the plaintiff that the appellant has acquired interest in the suit property by way of registered sale deed, the appellant had become absolutely necessary party to the suit especially when the defendant No.1 had taken up the stand that he was otherwise having no title to the suit property and he had transferred his rights, titles and interest in the suit property in favour of the appellant. Mr. Thakore thus submitted that the trial court has not committed any error in dismissing the suit of the plaintiff on the ground of non-joinder of the appellant and also the other persons whose names were found recorded in the revenue record. 13. Mr. Thakore further submitted that when the title of the plaintiff was challenged by filing written statement, it was very much necessary for the plaintiff to establish his ownership to the suit property. He submitted that the plaintiff has totally failed to prove as to how his father deceased Naranbhai had acquired right, title or interest in the suit property or how he became owner of the suit property. Mr. Thakore submitted that simply because defendant No.1 did not enter into the witness box, that would not absolve the plaintiff from proving his title to the suit property. He submitted t hat the learned trial Judge has recorded categorical finding that the plaintiff has not produced any document to establish his ownership to the suit property. It has also found from the revenue record that one Madhabhai and thereafter, father of defendant no.1 has acquired the right, title and interest in the suit property. He, thus, submitted that when the plaintiff has failed to prove his ownership rights to the suit property, he was otherwise not entitled to claim back the suit property from defendant no.1 as also from the appellant even though the document of conditional sale at Exh. 56 was believed to have been proved by the plaintiff. Mr. Thakore then submitted that the document Exh. 56 was believed to have been proved by the plaintiff. Mr. Thakore then submitted that the document Exh. 56 was though described as conditional sale but gave absolute right of ownership in favour of the appellant on failure of plaintiff to repay the amount of Rs.14,999.00 before expiry of 20 years period as stated in the document itself. He submitted that the plaintiff has failed to prove that he had gone to repay such amount at the house of defendant no.1 on 4.1.1994 as alleged by the plaintiff. Mr. Thakore has literally taken the Court through the evidence of the plaintiff and other witness examined by the plaintiff to point out that neither the plaintiff nor his witnesses have successfully proved that the plaintiff had ever gone to the house of defendant no.1 to repay the said amount on 4.1.1994. He submitted that the Courts below have misread the evidence on this aspect. He, thus, submitted that since the plaintiff failed to repay the amount within the period of 20 years, the appellant through defendant No.1 had become absolute owner of the suit property and the plaintiff was not entitled to get back the suit property under the deed at Exh. 56. Mr. Thakore submitted that the language of the deed also clearly reveals that the parties intended to make the sale absolute on expiry of 20 years if the amount is not repaid within said period. He further submitted that the Courts below have committed serious error in construing the document to be mortgage with conditional sale. He submitted that even if the appellant had not remained present before the first appellate court, the first appellate court on interpretation and construction of deed Exh. 56 ought to have held that the defendant No.1 and consequently appellant acquired absolute right as owner in the suit property. He, thus, urged to allow this appeal on the substantial questions of law framed. 14. In reply, learned advocate Mr. Barot appearing for respondent no.1 original plaintiff submitted that since the appellant was claiming under defendant no.1 as purchaser of the suit property, the appellant was in fact not necessary party to the suit. The appellant is not claiming any independent title to the suit property. The appellant is simply purchaser of the suit property from defendant no.1. Barot appearing for respondent no.1 original plaintiff submitted that since the appellant was claiming under defendant no.1 as purchaser of the suit property, the appellant was in fact not necessary party to the suit. The appellant is not claiming any independent title to the suit property. The appellant is simply purchaser of the suit property from defendant no.1. He submitted that the appellant was required to be joined only for the purpose of making the fruits of decree available to the plaintiff by directing the appellant to comply with the decree of possession on redemption of mortgage. Otherwise, the appellant was bound by the finding and the judgment holding the deed at Exh. 56 to be the deed of mortgage with conditional sale. He submitted that the plaintiff has proved deed Exh. 56 and thus became entitled to get back the suit property as the plaintiff was found to be ready and willing to repay the amount stated in the deed. He submitted that since the plaintiff filed the suit before expiry of 20 years period and since the plaintiff deposited the amount under the deed in the suit proceedings, the plaintiff had become entitled to redemption of mortgage even in absence of the appellant in the suit proceedings and the appellant would be then bound by such decree being the purchaser of the suit property from defendant No.1. Mr. Barot submitted that once defendant No.1 has not proved his case of tenancy by not entering into the witness box, he is taken to have accepted the right and authority of the plaintiff to the suit property and the appellant would be bound by the terms of deed at Exh. 56 entered into between the father of the plaintiff and defendant no.1 and it is not open to the appellant to take different stand to the effect that the appellant was though claiming through defendant no.1 but acquired such right as regards ownership of the property through the original owners as found by the trial court on the basis of the revenue record. Mr. Barot submitted that the appellant had full opportunity to present his case before the first appellate court but the appellant has chosen not to appear before the first appellate court and not to contest the appeal filed by the plaintiff. Mr. Barot submitted that the appellant had full opportunity to present his case before the first appellate court but the appellant has chosen not to appear before the first appellate court and not to contest the appeal filed by the plaintiff. He submitted that since the defendant no.1 did not prove his case of tenancy and of acquiring independent title and since the appellant did not contest the appeal, the plaintiff could be said to have successfully proved his case in the suit and thus has become entitled to decree in his favour. He submitted that the first appellate court has rightly come to the conclusion that since defendant no.1 has accepted title of the plaintiff to the suit property and since the appellant is purchaser from defendant no.1, even if the appellant was not joined as party to the suit, the suit was not required to be dismissed on such ground. Mr. Barot further submitted that since both the courts below have recorded finding of fact on construction of deed Exh. 56 that the transaction contained in the said deed was mortgage by conditional sale and since the plaintiff proved that he was ready and willing to repay the amount before the expiry of 20 years, this Court may not interfere with such finding of fact while exercising the powers under section 100 of the Code of Civil Procedure at the instance of the appellant who consciously chose not to contest the appeal before the first appellate Court though duly served with the notice. He, thus, urged to dismiss the appeal. 15. He, thus, urged to dismiss the appeal. 15. Having heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the R&P of the case, it appears that the suit of the plaintiff is for release of the suit property from conditional sale and for redemption of mortgage of the suit property on the basis that the father of the plaintiff deceased Naranbhai had entered into a transaction of conditional sale vide document dated 7.1.1974 with defendant no.1 where-under by accepting the amount of Rs.14,999.00, defendant no.1 was handed over the possession of the suit property and was allowed to enjoy the suit property without any obstruction from the father of the plaintiff and his heirs for a period of 20 years with condition that on father of the plaintiff repaying the said amount within 20 years, defendant no.1 shall re-transfer the possession of the suit property to the father of the plaintiff and also on the basis that the plaintiff though had gone to pay the said amount to the defendant no.1 before expiry of the said period of 20 years but defendant no.1 refused to accept the said amount, and therefore, the suit is filed to get back the suit property. It is required to be noted that though defendant no.1 denied execution of any such agreement dated 7.1.1974 and took up the stand that one Madha was the owner and his father was the tenant of the suit property and then the name of his mother was entered into as cultivator of the suit property and then his name was entered into and claimed independent right of tenancy and ownership but failed to prove such assertions about his tenancy right to the suit property by not entering into the witness box. So far as the execution of the deed Exh. 56 dated 7.1.1974 is concerned, the Courts below also came to the conclusion that the plaintiff has proved that the suit property was given to the defendant No.1 by conditional sale under deed dated 7.1.1974. 16. If the plaintiff has proved deed dated 7.1.1974 and if the defendant No.1 has failed to prove the independent right and title to the suit property, question would be whether the suit of the plaintiff would fail on non-joinder of the appellant in the suit who was claiming under defendant no.1. 16. If the plaintiff has proved deed dated 7.1.1974 and if the defendant No.1 has failed to prove the independent right and title to the suit property, question would be whether the suit of the plaintiff would fail on non-joinder of the appellant in the suit who was claiming under defendant no.1. It is required to be noted that the plaintiff has in his appeal taken up specific stand that the appellant being the purchaser of the suit property from defendant no.1, could not have acquired better title than defendant no.1 and transaction of sale in his favour before expiry of 20 years was not valid. Still the appellant was joined in the appeal to avoid any future difficulties in getting the clear fruits of the decree. But the appellant chose not to appear before the first appellate court and not to contest the appeal. Even if the appellant had appeared before the first appellate court, he being the person claiming under defendant no.1, could not have set up independent title in the suit property. Therefore, title which the appellant could have claimed before the first appellate court was at the best the right and title which defendant no.1 acquired under the deed Exh. 56 dated 7.1.74 to hold the suit property .for a period of 20 years as mortgagee. Said deed clearly provides that before expiry of 20 years, it was open to the plaintiff to repay the amount under the deed and to get back the possession of the suit property. Since the appellant also would be bound by the terms of the deed, even if he was not joined in the suit, the suit of the plaintiff would not fail on account of non-joinder of the appellant. If under the decree, defendant No.1 is required to redeem the mortgage of the suit property, the appellant having stepped in the shoes of defendant No.1 by purchasing the suit property from him, his non-joinder in the suit would not be fatal to the suit. In any case, the appellant was joined in the first appeal. However, the appellant inspite of service of notice in the first appeal, did not appear and contest the first appeal. By not appearing before the first appellate court, the appellant allowed the first appeal to be decreed in favour of the plaintiff without any contest. In any case, the appellant was joined in the first appeal. However, the appellant inspite of service of notice in the first appeal, did not appear and contest the first appeal. By not appearing before the first appellate court, the appellant allowed the first appeal to be decreed in favour of the plaintiff without any contest. The appellant by his conduct lost opportunity of being heard by not appearing before the court below. He is, therefore, not entitled to make any grievance of not being heard by court below. 17. Now, turning to the second substantial question of law as to whether the case advanced by the party should be totally discarded if he does not step in witness box, as discussed above, it is not that non- entering of defendant no.1 into the witness box has straightway benefited the plaintiff to get his right established under the deed. The plaintiff has by his .evidence proved deed Exh. 56. In view of this, the assertion of defendant No.1 that one Madhabhai was owner and then his father was tenant and thereafter, his name was entered in revenue record and thereby he had independent title to hold the suit property was required to be proved by defendant No.1. Defendant No.1 has failed to prove such plea taken by him in written statement by not entering in witness box. In such circumstances, the above case advanced by defendant No.1 was rightly discarded. Similarly the plaintiff having proved the deed Exh. 56 cannot be non suited on the ground that defendant no.1 has already advanced his case in the written statement about non entering into any transaction of conditional sale with the father of the plaintiff. In the facts of the case, case advanced by defendant no.1 also about denying the execution of deed with him by father of plaintiff has to be and stood discarded by virtue of the evidence of the plaintiff. 18. As regards third substantial question of law as to whether the respondent No.1 though not the owner is in law entitled to possession of the property in question, there is no dispute about the fact that the plaintiff is the son of the executant of the deed Exh.56,-deceased Naranbhai Kedarbhai Barot. On the death of Naranbhai, the plaintiff being one of the heirs was entitled to get the property released from conditional sale. On the death of Naranbhai, the plaintiff being one of the heirs was entitled to get the property released from conditional sale. After the death of deceased Naranbhai, the plaintiff being one of the co-owners with the other heirs of the deceased, was very much .entitled to file the suit to get back the suit property and to enjoy the possession thereof until the other co-owners approached him to get their share. The plaintiff has proved the execution of deed by his father. The defendant No.1 failed to prove that either Madha was the owner or got any other independent right to the suit property. Therefore, the defendant No.1 could be said to have held the suit property under the deed Exh. 56 executed by the father of the plaintiff. The defendant No.1 therefore could be said to have accepted the father of the plaintiff as owner of the suit property. The plaintiff is, thus, entitled to possession of the suit property. 19. As regards 4th substantial question of law as to whether the respondent No. 2 is precluded from challenging the authority of respondent No.1 to enter into the agreement, it is required to be noted that the deed dated 7.1.1974 was not only signed by the father of the plaintiff deceased Naranbhai K. Barot but it was also signed by the plaintiff Barot Bipinchandra Naranbhai. As stated above, the plaintiff has already proved execution of such agreement with defendant No.1 and handing over of possession to defendant no.1 under such agreement. If the defendant no.1 has failed to prove his independent right to the suit property by not entering into the witness box, he is taken to have accepted the authority of the plaintiff and his father to execute the deed in his favour and he is estopped from challenging such authority. Equally, the appellant since claiming under defendant no.1 is also precluded from challenging the authority of the father of the plaintiff to execute such agreement in favour of defendant No.1. If the defendant no.1 had got possession and held the suit property under the agreement, the appellant since got the possession and held the suit property through defendant no.1 such possession of the appellant was also under the said agreement. If the defendant no.1 had got possession and held the suit property under the agreement, the appellant since got the possession and held the suit property through defendant no.1 such possession of the appellant was also under the said agreement. They therefore can be said to have accepted such right and authority of the father of the plaintiff in the suit property, and thus precluded from challenging such authority of the plaintiff. 20. Mr. Thakore however advanced two more contentions. One is that the transaction contained in the deed Exh.56 could not be said to be the transaction of mortgage with conditional sale. He submitted that the terms of agreement clearly provided to transfer the title in the suit property absolutely in favour of defendant no.1 and also in favour of purchaser from defendant no.1. He submitted that the language of deed clearly reveals the intention of the parties to permit sale of the suit property by defendant no.1 and such being clear authority given by father of plaintiff in favour of defendant no.1, the appellant having purchased the suit property from defendant no.1 under such authority found in the deed itself, sale in favour of the appellant could be said to be absolute sale without any restriction. Though above is not the substantial question of law formulated when the appeal was admitted, however, since Mr. Thakore has raised such question, it needs to be dealt with in this appeal. In order to deal with such question, the Court needs to refer to the contents of the deed Exh. 56. Initial part of the deed provides for giving of possession by the father of the plaintiff on conditional sale and permitted defendant no.1 to cultivate and enjoy the suit property without any obstruction either by the father of the plaintiff or his heirs. Deed further provides that subject to the conditions provided in the deed, it would be open to defendant No.1 to transfer the suit property in favour of anybody. However, there is specific condition found in the deed that on the executant of the deed i.e. father of the plaintiff repaying the amount of Rs.14,999.00 within the period of 20 years, defendant No.1 was required to give back the possession of the suit property. However, there is specific condition found in the deed that on the executant of the deed i.e. father of the plaintiff repaying the amount of Rs.14,999.00 within the period of 20 years, defendant No.1 was required to give back the possession of the suit property. At this stage, it is required to be noted that it is nowhere provided in the deed that if the amount of Rs.14,999.00 is not paid before expiry of 20 years, sale in favour of defendant no.1 shall become absolute. What is specifically provided is of handing over possession of the suit property back to the plaintiff’s father on repayment of the amount before expiry of 20 years. From such terms of the deed, it could never be said that the executant of the deed ever intended to enter into the transaction of absolute sale. What was intended was to give back the possession of the suit property to the original owner on original owner repaying the amount stated in the deed. It is required to be noted that the period stipulated in the deed for repayment is of 20 years long period and the property was intended to be given back to the original owner on repayment of the same amount given by defendant No.1. There is no clause of repurchase of the property on expiry of any period. Condition of re-transfer of possession is provided in this very deed and there is no separate document executed between the parties for re-purchase of the property. Learned advocate has however placed reliance on the provisions of section 58(C) of the Transfer of Property Act (“the T.P. Act” for short) to point out that if the condition provided in the deed is not satisfied, then, even the transaction of mortgage would be culminated into transaction of sale. He submitted that there is no evidence establishing compliance of condition by the plaintiff of repayment of the amount stated in the deed to the defendant no.1 before expiry of the period of 20 years. He, therefore, submitted that by virtue of sec. 58(C) of the T.P. Act, the appellant had also become absolute owner of the suit property on having purchased from defendant no.1. He, therefore, submitted that by virtue of sec. 58(C) of the T.P. Act, the appellant had also become absolute owner of the suit property on having purchased from defendant no.1. He submitted that even if the appellant had not contested the first appeal, learned appellate Judge was under obligation to consider this aspect of the matter which could have been appreciated from the documentary evidence available on record especially terms of deed at Exh. 56. However, such contention of the learned advocate cannot be accepted for the simple reason that not only the language of the deed clearly reveals that the transaction contained in the deed was mortgage by conditional sale but there was no specific condition of sale becoming absolute on non compliance of the condition of repayment of the amount as stated in the deed. 21. In this regard, proviso to section 58(C) would be relevant which provides that no transaction shall be deemed to be mortgage unless the condition is embodied in the document which effects or purports to effect the sale. I have already discussed above that there is a specific condition to re-transfer the possession of the suit property on repayment of the amount and, therefore, when such condition is embodied in the same document as regards re-transfer of the property, the transaction contained in the deed could be said to be mortgage with conditional sale and in absence of any further condition of transaction, sale becoming absolute sale on non compliance of the condition of repayment of the amount, such transaction under the deed would remain to be the transaction of mortgage with conditional sale. 22. As regards the second contention of the learned advocate for the appellant which is also not part of substantial question of law that the plaintiff having not proved to have approached defendant No.1 with the amount of Rs.14,999.00 before the expiry of 20 years, and therefore, not entitled to get back the suit property, it is required to be noted that not only the plaintiff but his other witnesses have stated that the plaintiff had gone to the house of defendant No.1 to repay the amount but he refused to accept the amount by stating that the period of 20 years had still not expired. Learned Advocate Shri Thakore however vehemently submitted that the plaintiff and his witnesses all have remained unsuccessful in proving that they had gone to the house of defendant no.1 on 4.1.1994. He submitted that the plaintiff and his witnesses stated that they had gone to the house of defendant no.1 somewhere in the season of summer and, therefore, it was not believable that the plaintiff had ever gone to the house of defendant No.1 on 7.1.1994. He thus submitted that since the Courts below have totally misread the evidence, as regards complying with the condition of repayment of amount within the period of 20 years, plaintiff was not entitled to re-transfer of the suit property. The contention cannot be accepted. It is required to be noted that the plaintiff and his witnesses as also the defendant No.1 all hail from a small village. Even if the plaintiff and his witnesses have stated that they had gone somewhere in the season of summer without specifying the date, their evidence on the aspect of approaching the defendants could not have been discarded especially when the plaintiff filed the suit on 5.1.1994 i.e. prior to expiry of the period of 20 years as specified in the deed at Exh. 56 for release of suit property. If the plaintiff was vigilant to file the suit before expiry of 20 years period, then, it is not possible to believe that the plaintiff had not gone to the defendant No.1 to offer the repayment of the amount before expiry of 20 years to repay the amount. In any case, both the courts below have appreciated the evidence and found that the plaintiff had approached defendant No.1. This being the finding of fact on appreciation of evidence and since the suit is also filed before expiry of 20 years, the plaintiff could be said to have complied with condition of repayment of amount within the period prescribed in the deed. 23. For the reasons stated above, the appeal is required to be dismissed. It is accordingly dismissed. 24. At this stage, learned advocate Mr. Thakore requests to extend the interim relief. Considering the fact that the appeal remained pending for long time, it would be in the interest of justice to extend the interim relief for a period of six weeks from today. Hence interim relief is extended for a period of six weeks from today.