JUDGMENT AND ORDER : Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Ms. M. Choudhury, learned counsel appearing for the appellants as well as Mr. B. Majumder, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the CPC from the concurrent finding of the fact as returned by the judgment dated 26.02.2013 by the Additional District Judge, North Tripura, Dharmanagar in Title Appeal No.10 of 2012 while affirming the judgment dated 05.03.2012 delivered in Title Suit No.13 of 2009 by the Civil Judge (Junior Division), Dharmanagar, North Tripura. 3. When admitting this appeal, by the order dated 10.07.2013, the following substantial question of law was formulated for hearing: “Whether by the impugned judgment dated 26.02.2013 the Additional District Judge has misread the evidence including the said content of the said ekrarnama, Exbt. B for purpose of affirming the finding as regard to the possession as returned by the Civil Judge, Jr. Division, Dharmanagar, North Tripura by his judgment and decree dated 13.12.2013 in Title Suit No.13 of 2009?” 4. For purpose of appreciating the substantial question of law, the relevant facts may briefly be noted at the outset. The suit being Title Suit No.13 of 2009 was filed by the respondents for perpetual injunction under Section 38 of the Specific Relief Act as the plaintiff was threatened of dispossession on 17.12.2008 by the appellants and their men. But for resistance offered by the plaintiff-respondents in order to protect the possession and interest in the suit land, the said bid was frustrated. But for enjoying peaceful possession, the suit for perpetual injunction was filed against the defendant-appellants. The suit land indisputably pertains to Khatian No.1460 of Mouja Dharmanagar, R.S. Plot No.5633 corresponding to old plot No.3649 measuring .39 acre. The plaintiff-respondents prayed for the said relief based on the title which devolved to them by way of sale vide the saledeed No.12253 dated 03.06.1993 from Harendra Chandra Torat and Himangshu Torat. On the same day of purchase, they took the delivery on the possession. The said land has been mutated in their name under Khatian No.1460. But the root of the dispute can be located in the transfer of the suit land to Harendra Chandra Torat and Himangshu Torat who claimed to have purchased the suit land from Paresh Chandra Malakar, the predecessor and father of the defendant-appellants. 5. The said land has been mutated in their name under Khatian No.1460. But the root of the dispute can be located in the transfer of the suit land to Harendra Chandra Torat and Himangshu Torat who claimed to have purchased the suit land from Paresh Chandra Malakar, the predecessor and father of the defendant-appellants. 5. Hemendra Torat and Himangshu Torat claimed to have purchased the said suit land by dint of the registered sale deed No.1383 dated 03.02.1977. The sale documents are not disputed by the defendant-appellants. But the defendant-appellants have claimed that the sale that occurred on 03.02.1977 was a conditional sale as his father took a loan of Rs.2,000/and he executed the saledeed dated 03.02.1977 with oral condition that on payment of the said loan amount within a period of 5(five) years from date of the execution of the saledeed, Hemendra Torat and Himangshu Torat shall reconvey the said land in favour of Paresh Chandra Malakar. According to them, within 5(five) years their father Paresh Chandra Malakar repaid the loan and on 09.02.1981 a memorandum [smaraklipi] was issued by Hemendra Chandra Torat (Exbt.B). From the reading of the said memorandum it would appear that on that day of execution of the said memorandum i.e. 09.02.1981 the possession of the land was handed over. But the plaintiff-respondents have claimed that from 03.06.1993 when the land was purchased from Hemendra Chandra Torat and Himangshu Torat they are in continuous possession over the said land. On 07.12.2008, the defendant-appellants made a desperate bid according to the plaintiff-respondents to oust them from possession. But the said bid was frustrated for their resistance. 6. On the basis of the pleadings, as many as 4(four) issues were framed, which are as under: (i) Whether the suit is maintainable in its present form and nature. (ii) Whether the plaintiffs have any cause of action for the suit. (iii) Whether the plaintiffs are entitled to the decree as prayed for. (iv) To what other relief/reliefs are the parties entitled. 7. (ii) Whether the plaintiffs have any cause of action for the suit. (iii) Whether the plaintiffs are entitled to the decree as prayed for. (iv) To what other relief/reliefs are the parties entitled. 7. It is to be noted further that, the defendant-appellants have asserted in their written statement as under: “In the meantime, both Paresh Chandra Malakar and Hemendra Chandra Torat died and after the death of Paresh Chandra Malakar, the defendants along with their sisters and their brother became the owners as per succession and the suit land along with other land have been recorded in their name under the khatian No.337, touji No.470 of mouja& Tehsil Kadamtala, Rev. Circle and sub division Dharmanagar, North Tripura and they are jointly possessing the said land as their predecessor, Paresh Chandra Malakar exercising their right openly, adversely to the knowledge of rightful owners continuously without any interruption since 09.02.1981 A.D. extinguishing the right of lawful owner since 09.02.1981 A.D. Hemendra Tarat and his successor, Himangshu Tarat and Harendra Tarat had no right to sale the suit property to anybody or to the plaintiffs and the plaintiffs acquired no right in the suit property by socalled purchaser. Hemendra Tarat after purchase the suit land from Paresh Malakar till his death never prayed for mutation of the suit land in his name because he knew very well that he was not the owner of the suit land and he was not the owner of the suit land and he had no ill motive and illegal gain at the saleing whole properties to the plaintiffs, they have also included the suit land in the sale deed. But never got possession or possessed the suit land since 09.02.1981 A.D. neither Hemendra Tarat or his sons nor the plaintiffs have possessed the suit land for a single day.” 8. But never got possession or possessed the suit land since 09.02.1981 A.D. neither Hemendra Tarat or his sons nor the plaintiffs have possessed the suit land for a single day.” 8. After recording the evidence, the trial court by the judgment dated 05.03.2012, has observed as under: “After perusing the pleadings and also the documentary evidence and ocular evidence of both sides it appears that the plaintiffs/petitioners have purchased the land by a registered sale deed no.12253 on 03.06.1993 from Harendra Chandra Tarat and Himangshu Tarat for a valuable consideration and after purchasing the land they also mutated the land in their names in finally published khatian no.1460 of Mouja and Tehsil – Kadamtala for a land measuring 0.39 acre appertaining to RS plot no.3946 (Part) corresponding to CS plot no.5633 and RS plot no.3976/5225 corresponding CS plot no. 5773. The said khatian no. is marked as Exbt.1 which is adduced on behalf of the plaintiffs. It also appears after perusing the khatian no.1460 adduced on behalf of the plaintiff that the record of rights was created on the basis of M.R. Case no.45 and 36/04 and 35/04. Therefore, from these documents it is clear that the plaintiffs/petitioners are the bonafide purchaser of the suit land and after purchase, the suit land was also mutated in their name after observing all the statutory formalities as laid down in the TLR and LR Act. Also after perusing the khatian no.1460 marked as Exbt.1 it appears that it stands in the name of the plaintiffs Unmadini Bala Das and Nikhil Chandra Das and both the plaintiffs are the joint owner and possessor of the suit land having 50% share each. After perusing the evidences of the plaintiffs side it has also transpires that the plaintiffs have also deposed specifically and clearly about the boundary of the suit land though in some places some minor contradiction is found but such contradiction can be ignored with because Civil cases are based on documentary evidences and the documentary evidences has an upperhand against the ocular evidences. The certified copy of the trace map furnished from the plaintiffs side which is marked as Exbt.2 also clearly shows the land bearing RS plot no.5633 which the plaintiffs claim in their possession. The certified copy of the trace map furnished from the plaintiffs side which is marked as Exbt.2 also clearly shows the land bearing RS plot no.5633 which the plaintiffs claim in their possession. On the other hand, the defendants/O.P.s in their written statement has stated that the father Paresh Chandra Malakar had sold out the suit land to Hemendra Taarat, father of Harendra Tarat and Himangshu Tarat in the year 1977 with an oral condition of repurchasing it after 5 years and accordingly, Hemendra Tarat sold out the same to Paresh Chandra Malakar father of the defendants on 09.02.1981 on the basis of one unregistered Smaraklipi executed by him after receiving an amount of Rs.2000/. The said copy of Smaraklipi/memorandum is also submitted by the defendants side and is marked as Exbt.B and during the executing of the Smaraklipi Hemendra Tarat promised that he would register the suit land in favour of Paresh Chandra Malakar father of the defendant in future and also delivery the possession of the same to the defendants. But it is a fact that no such sale deed was registered during the life time of Hemendra Tarat or till date. Therefore, according to the defendants/O.P.s that their father has repurchased the suit land from Hemendra Tarat by executing an unregistered Smaraklipi does not sustains in the eye of law because as per provision of Transfer of Property Act such transfer from Hemendra Tarat to Paresh Chandra Malakar by dint of unregistered Smaraklipi is not a valid transfer because of the fact the same was not registered by a valid registered sale deed as per provisions of Section 54 of Transfer of Property Act though the value of the suit land is more than Rs.100/. Hence it is presumed in the eye of law that Hemendra Tarat has not delivered the property to Paresh Chandra Malakar father of the defendants/O.P.s because the transfer is not a valid transfer. So, the claim of the defendants/O.P.s that after the death of Paresh Malakar the defendants along with their sister and mother became the owner of the suit land by inheritance does not also sustains here because as stated earlier that the transfer of the suit land from Hemendra Tarat to Paresh Malakar during his repurchase is not a valid transfer. So, the claim of the defendants/O.P.s that after the death of Paresh Malakar the defendants along with their sister and mother became the owner of the suit land by inheritance does not also sustains here because as stated earlier that the transfer of the suit land from Hemendra Tarat to Paresh Malakar during his repurchase is not a valid transfer. So, the question of becoming the owner of the suit land by inheritance on behalf of the defendants also does not arise in this case. So, the question of recording their names in khatian no.837 which is marked as Exbt.A submitted on behalf of the defendants also does not carries any weight to me. During argument Ld. Defence Advocate on behalf of the defendants has cited two case laws in support of their contention bearing case no. AIR 1978 Punjab and Haryana 326 and case no. AIR 1992 Delhi 197. I have perused the citations very carefully. In those citations it was stated by the Hon’ble Court that the suppression of the material facts is a sufficient ground for declining the discretionary relief of injunction and also it was stated in those judgments that malafide and calculated suppression of material facts would disentitle a party from getting injunction. But in this case, these citation as submitted by Ld. Defence Advocate is not applicable because those Judgments were given under different facts and circumstances of the case which does not attract the present case. Since, the transfer of repurchase by Paresh Chandra Malakar is not a valid transfer, it is also clear that the possession of the suit land was not handed over to Paresh Malakar, father of the defendants by Hemendra Tarat. On the other hand after perusing the documents submitted by the plaintiffs side it has revealed that after the purchase of the land the plaintiffs/petitioners also mutated the same in their name in a finally published khatian no.1460 which certainly proves that the plaintiffs/petitioners are in the possession of the suit land after the purchase. So, since the plaintiffs/petitioners are in the possession of the suit land so the plaintiffs/petitioners are entitled to get a decree as prayed for.” [Emphasis added] Based on such finding the suit was decreed. 9. So, since the plaintiffs/petitioners are in the possession of the suit land so the plaintiffs/petitioners are entitled to get a decree as prayed for.” [Emphasis added] Based on such finding the suit was decreed. 9. Being aggrieved by the said judgment dated 05.03.2012, the defendant-appellants filed an appeal under Section 96 of the CPC in the court of the Additional District Judge, North Tripura, Dharmanagar. The first appellate court by the impugned judgment while affirming the said finding of the trial court, has observed as under: “It is the contention Ld. Counsel for the defendant-appellants that their father late Paresh Ch. Malakar sold the suit land to Hemendra Tarat by registered deed in the year 1977 on condition to repurchase it after five years. But they have not produced the said sale deed vide No.1383 dated 03-02-1977 of the year 1977 allegedly executed by their father in favour of Hemendra Tarat. This is indeed a missing link in the evidence of the defendants. Further, according to the defendants said Hemendra Tarat transferred back the suit land to their father by means of the unregistered hand note i.e. ”Smaraklipi” dated 9.2.1981 (exbt.B) and that on the basis of that hand note they obtained the ROR i.e Khatian No.837 dated 20.10.92. But it sounds absurd as to how they could obtain the Khatian, which is an important revenue record, on the basis of that unregistered hand note. Here it is submitted by Ld. Counsel for the appellants that as there was a stipulation that the vendor Paresh Ch. Malakar would repurchase the property after five years from the vendee Hemendra Tarat, for the reason Hemendra Tarat did not mutate the property in his name. Here I am of the view that this could be the reason that despite the sale to Mr. Tarat the ROR still remained in the name of Mr. Malakar and that led to the eventual preparation of Khatian No.837 dated 20.10.92 in the name of the heirs of the said vendor late Paresh Ch. Malakar, regardless of the fact of the handing out of the ‘Smaraklipi’ by Hemendra Tarat to Paresh Ch. Malakar. In the case law reported in AIR 2003 SC 4548 it was held by Hon’ble apex court that if title is established burden is discharged. It now shifts to the adverse party to prove the contrary. Malakar, regardless of the fact of the handing out of the ‘Smaraklipi’ by Hemendra Tarat to Paresh Ch. Malakar. In the case law reported in AIR 2003 SC 4548 it was held by Hon’ble apex court that if title is established burden is discharged. It now shifts to the adverse party to prove the contrary. In the case in hand, the defendant-appellants cannot be held to have succeeded in dislodging the sturdy and cogent documentary evidence adduced by the plaintiffs i.e. the registered purchase deed and the finally published Khatian in their favour. In the case law reported in 1998 GLR 145 it was held by our Hon’ble High Court that the record of right shall be presumed to be correct unless and until that has been rebutted. Finally published Khatian must be construed to have authenticity as to the possession of plaintiff in the suit premises. In the instant case I am of the view that the registered purchase deed dated 3.6.1993 and the corresponding Khatian No.1460 dated 17.6.2008 relied upon by the plaintiff-respondents have been able to rebut the so called unregistered hand note and the Khatian in the name of the defendant-appellants. In the case law vide (1998) 3 GLR.119 it was held that the entry in ROR u/s 43 of TLR & LR ACT shall be presumed to be correct unless the contrary is proved.” [Emphasis supplied] By means of this appeal, the defendant-appellants have challenged this finding. 10. Mr. A.K. Bhowmik, learned senior counsel assisted by Ms. M. Choudhury, learned counsel appearing for the appellants has submitted that, on reading of the Exbt.B it would clearly transpire that, in terms of the condition of the sale Hemendra Chandra Tarat received the entire sum of the loan amount within the period as agreed by an oral agreement at the time of execution of the saledeed dated 03.02.1977. In the said memorandum [smaraklipi (Exbt.B)], it has been clearly acknowledged that the possession of the suit land was handed over to the predecessor of the defendant-appellants. The first appellate court did not consider that aspect of the matter properly and grossly misread the content of the said memorandum and as consequence of that, returned the finding which is entirely perverse in nature and hence the interference from this court is essentially required. 11. Mr. The first appellate court did not consider that aspect of the matter properly and grossly misread the content of the said memorandum and as consequence of that, returned the finding which is entirely perverse in nature and hence the interference from this court is essentially required. 11. Mr. Bhowmik, learned senior counsel appearing for the appellants, having relied a decision of the apex court in Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack De Sequeria (Dead) through L.Rs., reported in AIR 2012 SC 1727 , has further contended that the defendant-appellants are the true owners qua Paresh Malakar, their predecessor, and hence the suit for perpetual injunction against the true owners cannot be maintained. Mr. Bhowmik, learned senior counsel has relied on the following passages of Maria Margarida Sequeria Fernandes (supra): 96. The respondent's suit for injunction against the true owner the appellant was not maintainable, particularly when it was established beyond doubt that the respondent was only a caretaker and he ought to have given possession of the premises to the true owner of the suit property on demand. Admittedly, the respondent does not claim any title over the suit property and he had not filed any proceedings disputing the title of the appellant. 97. This Court in Puran Singh v. The State of Punjab (1975) 4 SCC 518 held that an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. 98. This Court in Mahabir Prasad Jain (supra) has held that the possession of a servant or agent is that of his master or principal as the case may be for all purposes and the former cannot maintain a suit against the latter on the basis of such possession. 99. In Sham Lal v. Rajinder Kumar & Others 1994 (30) DRJ 596 , the High Court of Delhi held thus: "On the basis of the material available on record, it will be a misnomer to say that the plaintiff has been in 'possession' of the suit property. The plaintiff is neither a tenant, nor a licensee, nor a person even in unlawful possession of the suit property. Possession of servant is possession of the real owner. A servant cannot be said to be having any interest in the suit property. The plaintiff is neither a tenant, nor a licensee, nor a person even in unlawful possession of the suit property. Possession of servant is possession of the real owner. A servant cannot be said to be having any interest in the suit property. It cannot be said that a servant or a chowkidar can exercise such a possession or right to possession over the property as to exclude the master and the real owner of the property from his possession or exercising right to possession over the property. Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider: (i) the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession. A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and & master." 100. The ratio of this judgment in Sham Lal (supra) is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property. 101. Principles of law which emerge in this case are crystallized as under: 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. 101. Principles of law which emerge in this case are crystallized as under: 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. [Emphasis supplied] On the first blush, this contention appears very attractive but this court is constrained to observe that this decision has got any application in the context of this appeal. 12. From the other side, Mr. B. Majumder, learned counsel appearing for the respondents has stated that this court would carry out any scrutiny in respect of the fact with the laiddown circumspection. Interference with the finding of the fact by the courts below is not required unless it is shown that the particular finding is perverse for non-reading the content of Exbt.B. He has emphatically submitted that both the courts below had taken due care of the content of Exbt.B and after giving adequate reasoning they have discarded the claim of the defendant-appellants. 13. For purpose of the jurisdictional limit of this court, while considering the judgment under Section 100 of the CPC [in the second appeal], Mr. Majumder, learned counsel has relied on a decision of the apex court in Deity Pattabhiramaswamy vs. S. Hanymayya and Others, reported in AIR 1959 SC 57 , where the apex court has held as under: “13. For purpose of the jurisdictional limit of this court, while considering the judgment under Section 100 of the CPC [in the second appeal], Mr. Majumder, learned counsel has relied on a decision of the apex court in Deity Pattabhiramaswamy vs. S. Hanymayya and Others, reported in AIR 1959 SC 57 , where the apex court has held as under: “13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Sigh, 17 Ind. App 122 (PC), stated thus: "There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of act, however gross the error may seem to be''. The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, 29 Cal WN 131: ( AIR 1923 PC 187 ), further elucidated the principle by pointing out: "If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed." Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See ILR 11 Lah 199: ( AIR 1930 PC 91 ). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public.” 14. Mr. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public.” 14. Mr. Majumder, learned counsel has submitted that the sale which took place on 03.02.1977 between Paresh Malakar and Hemendra Chandra Tarat and Himangshu Tarat, was not a conditional sale inasmuch as there was no document embodying such condition that on payment of any sum or the loan amount within a prescribed period, the predecessors of the plaintiff-appellant shall be bound to reconvey the suit land. In this respect, he has referred a decision of the apex court in Chunchun Jha vs. Ebadat Ali and another, reported in AIR 1954 SC 345 , where it has been observed by the apex court as under: “The only weakness in this argument is that when a mortgage is by conditional sale this is the form it has to take, because Section 58 (c) postulates that there must be an "ostensible sale" and if a sale is ostensible it must necessarily contain all the outward indicia of a real sale. The question we are considering can only arise when the word "sale" is used and, of course, a sale imports a transfer of title. The use of the words "absolute proprietor in our plaints" carries the matter no further because the essence of every sale is to make the vendee the absolute proprietor of what is sold. The question here is not whether the words purport to make the transferee an absolute proprietor, for of course they must under Sec. 58 (c) but whether that is done "ostensibly" and whether conditions of a certain kind are attached.” [Emphasis supplied] 15. In Vidhyadhar vs. Mankikrao and another, reported in AIR 1999 SC 1441 , the apex court has clearly held that, unless the condition as embodied by way of a proviso below Section 58(c) of the Transfer of Property Act is satisfied, the sale cannot be held to be the conditional sale. It has been enunciated as under: “45. Mortgage by conditional sale is defined under Section 58(c) as under: "58. (a) to (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It has been enunciated as under: “45. Mortgage by conditional sale is defined under Section 58(c) as under: "58. (a) to (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) Where the mortgagor ostensibly selles the mortgaged property on condition that on default of payment of the mortgage 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. (d) to (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." 46. The Proviso to this Clause was added by Section 19 of the Transfer of Property (Amendment) Act; 1929 (XX of 1929). The Proviso was introduced in this Clause only to set at rest the controversy about the nature of the document; whether the transaction would be a sale or a mortgage. It has been specifically provided by the Amendment that the document would not be treated as a mortgage unless the condition of repurchase was contained in the same document. 47. The basic principle is that the form of transaction is not the final test and the true test is the intention of the parties in entering into the transaction. If the intention of the parties was that the transfer was by way of security, it would be a mortgage. The Privy Council as early as in Balkishen Das v. Legge, (1899) 27 Ind App 58, had laid down that, as between the parties to the document, the intention to treat the transaction as an out and out sale or as a mortgage has to be found out on a consideration of the contents of document in the light of surrounding circumstances. The decision of this Court in Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301 : (1960) 2 SCR 117 and P.L. Bapuswami v. N. Pattay Gounder, AIR 1966 SC 902 : (1966) 2 SCR 918 , are also to the same effect.” [Emphasis added] 16. For the same principle of law, Mr. Majumder, learned counsel appearing for the plaintiff-respondents has relied on another decision of the apex court in K. Simrathmull vs. Nanjalingiah Gowder, reported in AIR 1963 SC 1182 . Finally, Mr. Majumder, learned counsel has contended that acknowledging the possession of the plaintiff-respondents, the khatian has been finally published and unless it is rebutted by substantive evidence, the presumption would be in favour of correctness of such entry. In this regard, he has relied on a decision of the apex court in Sudhangshu Mohan Deb (Dead) by L.Rs. vs. Niroda Sundari Debidhup and Ors., reported in AIR 2004 SC 1781 , where the apex court has observed as under: “.......... .......... .......... .......... "Section 43 : (1) When a record of rights has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publication, to any entry therein or to any omission therefrom. (2) When all objections have been considered and disposed of in accordance with the rules made in this behalf, the survey officer shall cause the record to be finally published in the prescribed manner. (3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct." 7. It will be seen from the above provision that once a khatiyan is finalised and its publication takes place, it is presumed to be correct until the contrary is proved. The final khatiyan stands published in favour of the appellant which gives the appellant right to remain in possession of the suit land. This is a fresh right created in favour of the appellant by the State Government in whom the entire land had vested by virtue of Sections 134 and 135 of the Act.” [Emphasis supplied] Thus, Mr. Majumder, learned counsel has fervently urged this court that there is no merit in this appeal and the purported misreading is without any substance. 17. Majumder, learned counsel has fervently urged this court that there is no merit in this appeal and the purported misreading is without any substance. 17. Having regard to the submissions made by the learned counsel and on scrutinising the records, for a very limited purpose, this court finds that the question that falls for consideration is, whether on the basis of the memorandum [Exbt.B], it can be inferred that the sale that occurred on 03.02.1977 was a conditional sale and the condition for reconveyance was met by the predecessor of the plaintiff-appellants on surrendering the possession of the land on that date when the said memorandum was executed. 18. In view of the proviso of Section 58(c) of the Transfer of Property Act and the law laid down by the apex court as referred by the learned counsel for the plaintiff-appellants, this court does not have any hesitation to hold that the said transaction cannot be held to be a conditional sale, inasmuch as, the defendant-appellants nowhere in the written statement has stated that either in the saledeed or any other collateral document executed on the same date, the said condition was embodied, meaning the said condition was recited in those documents. Hence, in view of the clear bar created by proviso to Section 58(c) of the Transfer of Property Act, it cannot be held that the sale was a conditional sale. Even by way of the memorandum it cannot be said that the title was ever transferred by the plaintiff-respondents in favour of the predecessor of the defendant-appellants or the defendant-appellants. Thus, so far the title is concerned, from the documents it is well crystallised that the plaintiff-respondents have got the title over the suit land. So far the possession is concerned, both the courts below have correctly held that the evidence that has been led by the defendants is not substantive enough to rebut the presumption of correctness of the entry made in the khatian mutated in favour of the plaintiff-respondents [Exbt.1 series]. This court does not find any infirmity in such finding. Thus, this court has no other alternative but to hold that while passing the impugned judgment, the first appellate court took due care of that memorandum [Exbt.B]. 19. Having held so, this court is pursuaded to hold that this appeal is bereft of merit and according the same is dismissed. Prepare the decree accordingly. Thus, this court has no other alternative but to hold that while passing the impugned judgment, the first appellate court took due care of that memorandum [Exbt.B]. 19. Having held so, this court is pursuaded to hold that this appeal is bereft of merit and according the same is dismissed. Prepare the decree accordingly. Send down the records thereafter.