1 2025:CGHC:56668 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 175 of 2014 1 - Jethiyabai (Since Died) Through LRs 2 - Suresh S/o Saunpat Aged About 47 Years 3 - Naresh S/o Saunpat Aged About 45 Years 4 - Dinesh S/o Saunpat Aged About 38 Years All residents of Village- Kathoutiya, Tehsil Nawagarh, District Bemetara, Chhattisgarh. 5 - Dhanmat Bai (Died) through LRs 6 - Nirmala Bai W/o Moti Sahu Aged About 40 Years Both appellants No.5 & 6 are R/o Pratappur, Tah. Nawagarh, Civil and Revenue District, Bemetara Chhattisgarh. 7 - Sarojani Bai W/o Tijau Sahu Aged About 42 Years R/o Dhanaura, Tahsil and District Kawardha, Chhattisgarh. --- Appellants versus 1 - Ramcharan S/o Nanku Aged About 50 Years, 2 - Jugabai W/o Nanku Aged About 65 Years 3 - Bindubai D/o Nanku Aged About 40 Years 4 - Rambai (since dead) through LRs 4.- (A) Kishore Chandrakar S/o Sangram Aged About 50 Years 4.- (B) Loknath S/o Kishore Chandrakar Aged About 32 Years 4 - (C) Takeshwar S/o Kishore Chandrakar Aged About 25 Years 4 - (D) Lalla S/o Kishore Chandrakar Aged About 21 Years 5 - Kalibai D/o Nanku Aged About 19 Years, All R/o Village - Kathoutiya, Tehsil And District - Bemetara (C.G.) 6 - Indubai D/o Nanku Aged About 44 Years R/o Mahli, Tah. And Distt. Mungeli Chhattisgarh. 7 - Gangotari Bai D/o Nanku Aged About 47 Years R/o Nawagaon, P.S. Kunda, Tah. And Distt. Mungeli Chhattisgarh. 8 - State of Chhattisgarh Through- Collector, Bemetara, Chhattisgarh. --- Respondent(s) SA No. 174 of 2014 1 - Jethiyabai (Since Died) Through LRs 2 - Suresh S/o Saunpat Aged About 47 Years 3 - Naresh S/o Saunpat Aged About 45 Years 4 - Dinesh S/o Saunpat Aged About 38 Years All residents of Village- Kathoutiya, Tehsil Nawagarh, District Bemetara, Chhattisgarh. 5 - Dhanmat Bai (Died) Through LRs, 6 - Nirmala Bai W/o Moti Sahu Aged About 40 Years, 2 Both appellants No.5 & 6 are R/o Pratappur, Tah. Nawagarh, Civil and Revenue District, Bemetara Chhattisgarh. 7 - Sarojanibai W/o Tijau Sahu Aged About 42 Years R/o Dhanaura, Tehsil and District Kawardha, Chhattisgarh. --- Appellants versus 1 - Ramcharan S/o Nanku Aged About 50 Years 2 - Jugabai W/o Nanku Aged About 65 Years 3 - Bindubai D/o Nanku Aged About 40 Years 4 - Rambai (since dead) through LRs 4.- (A) Kishore Chandrakar S/o Sangram Aged About 50 Years 4.- (B) Loknath S/o Kishore Chandrakar Aged About 32 Years 4 - (C) Takeshwar S/o Kishore Chandrakar Aged About 25 Years 4 - (D) Lalla S/o Kishore Chandrakar Aged About 21 Years 5 - Kalibai D/o Nanku Aged About 19 Years, All R/o Village - Kathoutiya, Tehsil and District - Bemetara (C.G.) 6 - Indubai D/o Nanku Aged About 44 Years R/o Mahli, Tahsil and District Mungeli Chhattisgarh. 7 - Gangotari Bai D/o Nanku Aged About 47 Years R/o Nawagaon, P.S. Kunda, Tah. And Distt. Mungeli Chhattisgarh. 8 - State of Chhattisgarh Through- Collector Bemetara, Chhattisgarh. --- Respondent(s) For Appellants : Shri Ram Kumar Tiwari, Advocate. For Respondents : Shri Alok Gupta, Advocate. For State : Shri Ajay Kumrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 20.11.2025 1. These two Second Appeals although are arising out of two different First Appeal decided by the First Appellate Court against two different judgments passed in separate Civil Suits, however, the subject matter of these two Civil Suits are one and common and therefore, they are being heard and decided together by this common judgment. 2. For the sake of convenience, the status of the parties are being taken in these Second Appeals as per their status shown in Civil Suits. 3. Second Appeal No.174 of 2014 has been filed by the appellant/plaintiff against the impugned judgment and decree dated 12.02.2014 passed 3 by the District Judge, Bemetara in Civil Appeal No.28-A/2013 which was arising out of judgment and decree dated 25.04.1988 passed by Civil Judge Class-I, Bemetara, in Civil Suit No.96-A/1987. The Civil Suit of plaintiff in Civil Suit No.96-A/1987 was dismissed and the First Appeal filed by the plaintiff has also been dismissed. 4. Second Appeal No.175 of 2014 is arising out of impugned judgment and decree dated 12.02.2014 passed by the District Judge, Bemetara in Civil Appeal No.22-A/2013 which was arising out of judgment and decree dated 25.04.1988 passed by Civil Judge Class-I, Bemetara, in Civil Suit No.100-A/1987 whereby the Civil Suit filed by the plaintiff (Defendant No.1 in Civil Suit No.96-A/1987) was decreed and the First Appeal filed by the defendants (Plaintiffs in Civil Suit No.96-A/1987) has been dismissed. 5. Both these appeals were admitted by this court on 28.03.2023 for hearing on the following substantial questions of law: “1. Whether the findings of the courts below are perverse and illegal in the eye of law in view of the provisions of Section 90 & 91 of the Evidence Act which prohibits admission of oral evidence? 2. Whether the appellants have proved that sale deed dated 13.06.1969 was executed as security against the loan?” 6. The subject matter of both these suits, in brief, are that one Saunpat who was the owner of land Khara No.208/2 area 50 decimal situated at village Kathoutiya, Tehsil Bemetara, District Durg, executed a registered sale deed in favour of one Nanku on 13.06.1969 for a total consideration of Rs.800/-. Saunpat is claiming that the said transaction was not outright sale but a nominal sale in lieu of loan borrowed by 4 him and possession of the suit land was never delivered to Nanku and therefore Saunpat is claiming for declaration of title and permanent injunction over the said land of Khasra No.208/2 area 50 decimal. Nanku is also claiming that by virtue of said sale deed, he is the title and possession holder of the suit land Khasra No.208/2 area 50 decimal and also claiming permanent injunction over the suit property. 7. Initially on 15.02.1983 Saunpat filed a civil suit bearing Civil Suit No.12-A/1983 (subsequently renumbered and hereinafter referred to as, Civil Suit No.96-A/1987) for declaration of title over the suit land Khasra No.208/2 area 50 decimal situated at village Kathoutiya and also for permanent injunction and in alternatively he prayed for possession of the suit land, if he was not found in possession of the suit land. It is pleaded in the plaint by the plaintiff Saunpat that he was having 5 Acres of land at village Kathoutiya. In the year, 1969 at the time of drought, the plaintiff was in need of money and then he borrowed an amount of Rs.800/- from defendant No.1-Nanku as he was in money lending business. He borrowed the said amount to the plaintiff Saunpat, but in lieu of its repayment and interest, he got executed a registered sale deed in his favour on 13.06.1969. At that time, the market rate of the suit land was not less than Rs.2000/- and the plaintiff Saunpat never handed over possession of the suit land to defendant No.1-Nanku. In the year 1980 when he tried to repay the amount to defendant No.1-Nanku, he refused to accept its repayment and informed that he has started proceeding for mutation of his name in the revenue records. On 01.12.1981 the Naib Tehsildar, Bemetara, passed an order of mutation in favour of defendant No.1-Nanku, which 5 he challenged before the Sub Divisional Officer (Revenue) Bemetara which has also been dismissed. He pleaded that the sale deed dated 13.06.1969 is only a nominal sale deed and not title has been passed in favour of defendant No.1 Nanku, and therefore, he filed the suit claiming the aforesaid reliefs. 8. The defendant No.1-Nanku contested the suit of the plaintiff and filed his written statement on 19.07.1983, denied the plaint averment and pleaded that the plaintiff Saunpat never demanded any loan from him and he never borrowed any amount to him. The plaintiff Saunpat has sold the land of Khasra No.208/2 area 50 decimal for a total consideration of Rs.800/- and handed over possession of the same from the date of registration of sale deed and he is in possession since then. The defendant No.1 had purchased the suit land as per its prevailing market rate and the entire sale consideration has been paid to the seller. By the passage of time, a canal was constructed by the State Government and then the value of said land was enhanced and only to grab the property of defendant No.1, the plaintiff has filed the suit claiming that the sale deed dated 13.06.1969 is a nominal sale. The suit of plaintiff is barred by limitation as he has not filed the suit within time and he never challenged the sale deed for its cancellation or declaring it void. He also pleaded that the objection raised by the plaintiff Saunpat was rejected by the Naib Tehsildar Bemetara and his appeal has also been dismissed by the SDO (Revenue), Bemetara, but he has not challenged the said orders in any appeal and the name of the defendant No.1-Nanku has been mutated in the revenue records on the basis of his title deed dated 13.06.1969. 6 9. The defendant No.1-Nanku (in Civil Suit No.96-A/1987) has filed a separate Suit on 16.09.1983 bearing Civil Suit No.6-A/1983 (subsequently numbered and referred hereinafter as Civil Suit No.100- A/1987) for declaration of title over the suit land of Khasra No.208/2 area 50 decimal situated at village Kathoutiya, permanent injunction and in alternatively claimed possession, if his possession is not found over the suit land. He also claimed for means profit. It is pleaded by the plaintiff Nanku (in Civil Suit No.100-A/1987) that he had purchased the suit land of Khasra No.208/2 area 50 decimal from defendant No.1 Saunpat through registered sale deed dated 13.06.1969 for a total consideration of Rs.800/- and after its purchase, he came in possession of the same and cultivating the suit land continuously. The name of plaintiff Nanku has also been mutated by the order passed by Naib Tehsildar Bemetara dated 01.12.1981. The appeal filed by the defendant Saunpat before the SDO (Revenue) Bemetara has also been dismissed vide order dated 25.05.1982. The defendant Saunpat was creating nuisance over the possession of plaintiff and he forcibly taken the crop of plaintiff which he reported to the police on 14.11.1981 and 24.11.1982 at Police Station Nawagarh, however, he was advised to approach before the competent court. He has also pleaded that the sale deed dated 13.06.1969 is an actual sale and it is not executed in lieu of any security of repayment of loan. He also pleaded that by the passage of time, the value of suit land is increased and therefore the defendant Saunpat, in order to grab the suit land, made an afterthought attempt by saying that it is a nominal sale in lieu 7 of repayment of loan amount. He also claimed means profit of Rs.4000/- and waived the remaining claim. 10. In Civil Suit No.100-A/1987, the defendant Saunpat (Plaintiff in Civil Suit No.96-A/1987) filed his written statement, denied the plaint averment and submitted that the sale deed dated 13.06.1969 is only a nominal sale executed in lieu of repayment of loan and the possession of suit land was never delivered to alleged purchaser. He is cultivating the suit land continuously and obtained crop every year. He borrowed Rs.800/- from the plaintiff Nanku in the year 1969 at the time when there was drought in village Kathoutiya. Under the situation, he executed a deed on 13.06.1969 and it was not a real sale, but a nominal sale. In the year, 1980 when the defendant Saunpat went to plaintiff to repay the amount of loan, he denied to accept the same and claimed title over the suit land and then dispute arose between the parties. 11. On the basis of respective pleadings of both the parties in the aforesaid civil suits, the trial court framed the following issues: C ivil Suit No.100-A/1987- dz- okn iz’u fu"d"kZ 1- v- D;k fnukad 13-6-69 dks okLrfod rkSj ij oknh us izfroknh ls okn Hkwfedz; djrs bl ij vkf/kiR; izkIr djrs dz; fnukda ls dkfct gS \ gka c- D;k izfroknh us oknh ls 800@: dtZ fy;k Fkk vkSj mldh lqj{kk ds fy, izfroknh ds :i esa Hkwfe dk cjk;ukek fodz; i= oknh ds i{k esa fy[kk x;k FkkA ugha 2-v- D;k izfroknh oknh dh cks;h Qly dks voS/k :i ls o"kZ 1980&81&82] 82&83 esa dkV fy;k \ gka c- D;k oknh bl Qly ds laca/k esa okn i= dh dafMdk 6 esa mYys[k vuqlkj 4000@ :- Qly uqdlkuh ikus dk vf/kdkjh gS \ gka 3000@ :- ikus dk vf/kdkjh gSA 8 l- Lkgk;rk ,oa okn O;; in dzekad 20 ds vuqlkj vkKfir nh xbZA Civil Suit No.96-A/1987 dz- okn iz’u fu"d"kZ 1 D;k oknh us izfroknh dks 800@: uxn dtZ fnukad 10-6-69 dks fn;k Fkk \ ugha 2 D;k oknh ls izfroknh us 10-6-69 dks gh fodz; i= fy[kk;k og mlh mijksDr dtZ dh lqj{kk ds fy, fy[kk;k Fkk vr% og fodz;i= u gksdj cjk;ukek gS \ vFkok ugh v- D;k oknh us izfroknh ds i{k esa mDr fodz; i= }kjk Hkwfe lgh esa csaph Fkh vkSj og fodz; i= gh fy[kk;k \ gka 3 D;k okn xzLr Hkwfe ij oknh dk gh yxkrkj 69 ds ckn ls 12 o"kksaZ ls vf/kd dCtk jgk gS vr% izfroknh dks dksbZ gd ugh feyrk \ vFkok Ukgha D;k izfroknh gh dkfot gS \ Li"V izekf.kr ugh 4 D;k oknh _.k eqDr gks pqdk gS \ ugha 5 D;k oknh dk nkok le; vof/k }kjk ckf/kr gS \ ugha 6 D;k oknh ds ikl ek= 5 ,dM Hkwfe gSA ugha vFkok D;k oknh ds ikl lhekar d`"kd dh ifjHkk"kk ls vf/kd 15 ,dM Hkwfe gS \ T;knk gS] ifjHkk"kk ls vf/kd tehu gS 7 D;k izfroknh lkgwdkj gS \ ugh 8 vuqrks"k ,oa O;; Okkn fujLr fd;k x;k 12. Since both the civil suits were filed in same court and with respect to same subject matter, vide order dated 29.03.1985 both the suits were consolidated together and proceedings of both the suits were running together. The evidence of parties were also recorded in one civil suit and the same has been made part of other civil suit also. As per endorsement in the deposition sheet of the witnesses, the evidence of 9 parties were recorded in civil suit No.100-A/1987 and the status of the parties have also been shown as per their civil suit number. 13. In order to prove their respective claim, the plaintiff Nanku (in Civil Suit No.100-A/1987) have examined PW-1 Chaitu, PW-2 Itwari, PW-3 Nanku, PW-4 Mohit and defendant Sanupat examined himself as DW- 1 and Ramnath DW-2. In Civil Suit No.96-A/1987, Saunpat has been examined as PW-1, Ramnath PW-2 and defendants have been examined DW-1 Chaitu, DW-2 Itwari, DW-3 Nanku and DW-4 Mohit. 14. In Civil Suit No.100-A/1987, the plaintiff Nanku relied upon document Ex.P/1 order dated 26.02.1985 passed by SDO Bemetara, Ex.P./2, order dated 25.05.1982 passed by SDO Bemetara, Ex.P/3, order dated 01.12.1981 passed by Naib Tehsildar Bemetara, Ex.P/4, B-1 Kistbandi in which the name of plaintiff Nanku was mutated and Ex.P/5 Khasra Panchsala and defendant Saunpat has relied upon document Ex.D/1 which is a sale deed dated 03.05.1974 executed by Nanku in favour of Nand Ram, Ex.D/2, Khasra Panchsala, Ex.D/3, sale deed dated 10.06.1980 executed by one Ramnath in favour of Ramji. 15. In Civil Suit No.96-A/1987, the plaintiff Saunpat has relied upon document Ex.P/1 which is an order dated 30.11.1985 passed by the SDO, Bemetara, Ex.P/2, order dated 25.05.1982 passed by SDO Bemetara, Ex.P/3 order dated 01.12.1981 passed by Naib Tehsildar Bemetara, Ex.P/4, B-1 Kistbandi and Ex.P/5 Khasra Panchsala and the defendant Nanku has relied upon sale deed Ex.D/1 dated 03.05.1974 executed by Nanku in favour of Nand Ram, Ex.D/2 Khasra Panchsala and Ex.D/3 sale deed dated 10.06.1980 executed by Ramnath in favour of Ramji. 10 16. After due appreciation of evidence led by the respective parties, the trial court dismissed the Civil Suit No.96-A/1987 and decreed Civil Suit No.100-A/1987 holding that deed dated 13.06.1969 is a real sale deed executed by Saunpat in favour of Nanku and it was not a nominal sale and Nanku is also entitled for possession of the suit land along with means profit @ 1000/- per year from the year 1980-81 till actual delivery of possession. The plaintiff Saunpat (in Civil Suit No.96-A/1987) had challenged the judgment and decree passed by the trial court in two different civil appeals bearing Civil Appeal No.22- A/2013 and 28-A/2013. During pendency of the first appeal, Saunpat died and his legal representatives i.e. present appellants have been substituted on 08.08.2013. Both the First Appeals filed by the appellants before the first appellate court have been dismissed vide judgment and decree dated 12.02.2014. Hence these two Second Appeals. 17. Shri Ram Kumar Tiwari, learned counsel for the appellants would submit that transaction between the parties dated 13.06.1969 is only a nominal sale and deed has been executed as a security of loan. Possession was never handed over to Nanku. The oral evidence with respect to nature of transaction and intention of the parties can be led by the parties and it is admissible as provided under Section 91 of the Evidence Act, 1872. Although, there is no endorsement in the deed dated 13.06.1969 but conduct of the parties are very much relevant that possession was not handed over and Nanku did not get his name mutated for a considerable period of 12-13 years and he only made application for mutation of his name in the year, 1980-81. The 11 document Ex.D/2 (in Civil Suit No.100-A/1987) is Khasra Panchsala of the year 1979-80 to 1981-82 in which the possession of the plaintiff Saunpat is recorded. He would also submit that Nanku had not produced the original sale deed to prove that it was an outright sale and in absence thereof, the transaction cannot be held to be genuine and it cannot be said to be a sale with intention to transfer the title. Therefore, the impugned judgment and decree passed by the trial court in the suit filed by the plaintiff Saunpat as well as counter suit filed by the plaintiff Nanku are liable to be set aside. 18. Per contra, Shri Alok Gupta, learned counsel appearing for the respondents No.1 to 7 would submit that the plaintiff Saunpat had executed the sale deed dated 13.06.1969 and it was an outright sale to transfer the title in favour of Nanku. The plaintiff Saunpat had never challenged the sale deed executed in favour of Nanku and he is not in possession thereof. In the mutation proceeding the Tehsildar as well as SDO have held that the sale deed was executed in favour of Nanku and possession was also delivered to its purchaser. By its detailed order, the Naib Tehsildar, Bemetara, have passed an order of mutation on 01.12.1981 in which the evidence led by the parties were discussed and it is found that it is an outright sale for transfer of title over the suit property. There is no condition embodied in the sale deed dated 13.06.1969 that it was executed in lieu of repayment of loan or there is any condition for repayment of any loan. He would further submit as provided under Section 58(c) of the Transfer of Property Act, 1882, the necessary endorsement with respect to mortgage or any loan amount of any loan transaction should have been embodied in that deed itself 12 and even if any other deed executed simultaneously separately from the alleged sale deed, it cannot be taken into consideration to hold that it was a loan transaction and property was mortgaged and in lieu of security of loan amount the sale deed was executed. From the evidence led by the plaintiff Saunpat, it has clearly been proved that defendant Nanku is in possession of the suit land, however, plaintiff Saunpat has created nuisance and taken his crop which were earned by the defendant Nanku for which he made a police complaint also. The trial court as well as the first appellate court has also granted a decree for possession of the suit land and means profit in which there is no perversity or illegality and there is no merits in the appeals and the same are liable to be dismissed. 19. I have heard the counsel for the parties, considered their rival submissions and perused the record of trial court. 20. With respect to substantial question of law No.1 as to whether the findings of the courts below are perverse and illegal in the eye of law in view of the provisions of Section 90 & 91 of the Evidence Act which prohibits admission of oral evidence, is concerned, this court examined the evidence available on record. Section 90 of the Evidence Act provides presumption as to documents thirty years old. It is necessary to take note of Section 90 of the Evidence Act which reads as under: “90. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.” 13 21. From perusal of the entire record it does not appear that any of the parties have filed the sale deed allegedly executed on 13.06.1969. Section 90 of the Evidence Act provides that where any document purporting or proved to be thirty years old, is produced from custody of the person with whom they would naturally be had a legitimate origin, the court may presume that the signature and every other part of such document was duly executed and attested by the persons of whom it purports to be executed and attested. In absence of any such deed in the record, no presumption can be drawn in favour of any of the party. However, the correctness and genuineness of the transaction can be considered by the other evidence available on record. 22. Section 91 of the Evidence Act relates to exclusion of oral by documentary evidence, however, there are certain exceptions of the same. Section 91 of the Act is also reproduced herein which reads as under : “91.– Evidence of terms of contracts, grants and other dispositions of property reduced to form of document- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein-before contained.” 23. The parties under dispute are claiming their rival title over the suit property and the alleged deed dated 13.06.1969 is under dispute as to whether it was an outright sale or it was a sale deed executed in lieu of security of repayment of loan. Although the deed dated 13.06.1969 is not produced by any of the parties, but this court vide order dated 14 08.07.2025 directed the parties to produce the certified copy of the subject sale deed which has been filed by the respondents on 08.10.2025. From perusal of the contents of sale deed dated 13.06.1969 it transpires that seller Saunpat S/o Chaitram executed the sale deed in favour of purchaser Nanku S/o Gopal with respect to land Khasra No.208/2 area 50 decimal situated at village Kathoutiya for total consideration of Rs.800/- and a mention in the sale deed that it is a sale deed with respect to transfer of the title and possession was also handed over to the purchaser. There is no endorsement in the sale deed that it was a loan transaction or executed in lieu of repayment of loan. The question would be that the plaintiff Saunpat was not entitled to adduce evidence to show that the sale deed was not intended to be acted upon and the real nature of the transaction was that it was merely a loan. In the written statement the defendant Nanku pleads that it was a real sale in lieu of sale consideration of Rs.800/-. The plea raised by the plaintiff Saunpat goes to show that the sale deed was fictitious and no interest in the property passed to the defendant Nanku in any manner under the said sale deed. Therefore, in the opinion of this court, to show the intention of the parties, the plaintiff Saunpat was entitled to give evidence to show that the sale deed was never agreed to be acted upon. If there was stipulation between the party that the transaction would right be enforced or that it would not be acted upon ab-initio, oral evidence in support of such a plea may be given if the document is signed with express intention that it should not be an agreement, the other party is not entitled to fix the document as an agreement upon those who 15 execute the documents. It is true that under Section 91 of the Evidence Act when the terms of a transaction have been reduced to writing, extrinsic evidence as to what transpire subsequent to the contract is not admissible for ascertaining the terms and no oral statement is admissible between the parties to any instrument for the purposes of contradictory, varying, adding or to subtracting from its term. If the language employed in document is ambiguous, the question of admissibility or otherwise of extraneous evidence would be regulated by the provisions of Section 93 to 98 of the Evidence Act. If the validity of a document is impeached, the court is not bound by what has been described as the paper expression of the party and is not precluded from entering into the real nature of transaction between them. 24. In Tulsi and Others Vs. Chandrika Prasad & Others, 2006 (8) SCC 322, the Hon’ble Supreme Court in paragraph 20 of its judgment has held as under: “Section 91 of the Evidence Act mainly forbids proving of the contents of a writing otherwise than by writing itself and merely lays down the 'best evidence rule'. It, however, does not prohibit the parties to adduce evidence, in a case, the deed is capable of being construed differently to show how they understood the same.” 25. When this court examined the oral evidence led by the parties to show the real intention as to whether the said transaction was an outright sale or a sale in lieu of repayment of loan, it is found that both the courts below have concurrently held that the subject transaction is an outright sale and not the nominal sale deed executed in lieu of repayment of loan amount. 16 26. Saunpat, PW-1 (in Civil Suit No.96-A/1987) though have stated that he borrowed Rs.800/- from the defendant Nanku and pledged the suit land with a condition that he will pay the interest on the borrowed amount and he cultivated the same every year and obtained the crop. Nanku has never shown the crop there. He admits that he lost before the revenue courts and in paragraph 7 he admits that in the revenue courts he has not said he pledged the suit land with the defendant Nanku and it was not a real sale. He also states that he has no receipt of payment of interest on the borrowed amount. 27. PW-2, Ramnath (in Civil Suit No.96-A/1987) though is a witness of similar transaction of his own land with respect to loan, however, he did not know about transaction of plaintiff Saunpat. He did not know about transaction of the year, 1969 between plaintiff and defendant. He is the witness that plaintiff Saunpat is in possession and cultivating the suit land. 28. DW-3, Nanku (in Civil Suit No.96-A/1987) have stated in his evidence that after its purchase he came into possession of suit land and got his name mutated by Tehsildar. He proved the mutation order Ex.P/1. He too have stated that he is in possession of the suit land and cultivating the same every year. He also stated that since 4-5 years the plaintiff Saunpat had taken the crop earned by him (Nanku). In cross examination he has stated that he handed over original sale deed to his counsel, but he did not know as to whether he produced it in the case or not. He admits that deed is of the year, 1969. The said deed is outright sale and it is not a deed executed in lieu of repayment of loan amount. He admits that after mutation of his name in the revenue 17 record when he son had gone to harvest the crop of suit land, the plaintiff Saunpat objected and raised quarrel. His son lodged a criminal complaint against Saunpat and his family members. 29. DW-4, Mohit (in Civil Suit No.96-A/1987) is the witness of sale deed executed in favour of Nanku on 13.06.1969. He proved that Saunpat had sold the suit land to Nanku and the deed was registered. After its purchase Nanku is cultivating the purchased land. 30. DW-1, Chaitu and DW-2 Itwari (in Civil Suit No.96-A/1987) are the witnesses with respect to earning the crop from the suit land. However, except their self served statement, no other documentary evidence with respect to earning the crop from the suit land is produced by the defendant Nanku. 31. Though the parties have led oral evidence with respect to nature of transaction and also with respect to their possession over the suit land, however, this court does not find any sufficient reason to hold that plaintiff Saunpat has proved his lawful possession over the suit land. When the alleged transaction is found to be outright sale and possession was also handed over to the purchaser, it can be held on preponderance of probability that defendant Nanku is in possession of the suit land by virtue of sale deed dated 13.06.1969, however, the plaintiff Saunpat is creating nuisance by cutting the crops over the suit land without any lawful authority. From the admission made by the defendant Nanku that plaintiff Saunpat is cutting crops since 4-5 years, the trial court comes into conclusion that since 1980 the plaintiff Saunpat is in possession of the suit land. 18 32. The first appellate court has also concurrently held that defendant Nanku was in possession of the suit land by virtue of sale deed dated 13.06.1969, however, in view of the admission made by the defendant Nanku that plaintiff Saunpat is cutting crops since 4-5 years and he also made complaint to the police and further in view of entries made in the document Ex.D/2, Khasra Panchsala of the year, 1979-80 to 1981-82 and Ex.P/5 Khasra Panchsala of the year 1985-86, the possession of Saunpat is also recorded in the revenue record and in view of the oral evidence led by the parties, it can be held that Saunpat is in possession of the suit land. 33. So far as the second substantial question of law as to whether the appellants have proved that sale deed dated 13.06.1969 was executed as security against the loan, is concerned, perusal of copy of sale deed dated 13.06.1969 it transpires that there is no endorsement in the sale deed dated 13.06.1969 that it was executed in lieu of repayment of loan, however, the recital of sale deed clearly stipulates that it was an outright sale deed. 34. Section 58(c) of the Transfer of Property Act, 1882 defines “mortgage by conditional sale”, which reads as under: “58. (c) Mortgage by conditional sale.—Where the mortgagor ostensibly sells 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.” 19 35. The effect of this proviso is that no document of sale can be treated as mortgage unless the document effecting the sale itself contains a recital to that effect. The whole object is to exclude or shut out the oral evidence to be adduced in the case when such a condition is contained in a separate document. Thus, if the document effecting a sale does not contain a stipulation regarding the conversion of the sale into a mortgage and such a stipulation is contained in a separate document, in such a case, it is not at all open in law to enquire into the nature of the transaction and to take extrinsic evidence for holding that the document which purports to be an absolute sale is in reality, a mortgage. 36. The question is, whether the abovestated transaction contained in Ex.D1, which is in the nature of sale, is a mortgage by conditional sale or it is an outright sale? 37. The question so posed for consideration is no longer res integra and stood adjudicated authoritatively by Their Lordships of the Supreme Court which may be referred herein usefully and profitably as well. The Supreme Court in the matter of Chunchun Jha v. Ebadat Ali and Another, AIR 1954 SC 345, considered the matter by posing a question in paragraph 5 as under: “(5) The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation. There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. 20 Each must be decided on its own facts. But certain broad principles remain.” 38. The question so passed for consideration was answered by Their Lordships in paragraphs 9 and 13 as under: “(9) The document with which we are concerned (Ex. A) is in the following terms and our first duty is to construe the language used and see whether it is ambiguous. (We have paragraphed the document for convenience of construction and have omitted unnecessary words.) (1) "Rs. 634 principal with interest under a registered rehan bond " (simple mortgage) "dated the 6th May 1927 is justly due ............ by us the executants. Now we further require Rs. 6560 more to meet costs of the suit under section 40." (Bihar Tenancy Act.) (2) “and at present there is no other way in view rather it seems impossible and difficult to arrange for the money without selling the property let out in rehan " (simple mortgage) "under the above mentioned bond" (3) "Therefore, we the executants declare .... that we …. sold and vended the properties detailed below on condition (given below) for a fair and just price of Rs. 700....…" (4) "That we set off Rs. 634100 against the consideration money " (torn) "payable under the aforesaid bond in favour of the said vendee and received Rs. 6560 in cash from the said vendee. In this way the entire consideration money was realised from the said vendee." (5) "and we put the said vendee in possession and occupation of the vended property detailed below and made him an absolute proprietor in our places." (6) "If we, the executants, shall repay the consideration money to the said vendee within two years ............ the property vended under this deed of conditional sale attached shall come in exclusive possession and occupation of us, the executants." (7) "If we do not pay the same, the said vendee shall remain in possession and occupation thereof, generation after generation, and he shall appropriate the produce thereof." (8) "We, the executants, neither have nor shall have any objection whatsoever in respect of the vended property and the consideration money. Perchance if we do so it shall be deemed null and void in Court." (9) "and we declare also that the vended property is flawless in every way and that if in future any kind of defect whatsoever be found on account of which the said vendee be dispossessed of a portion or the entire property vended under this deed of conditional sale and will have to pay the loss or damage, in that event we, the executants, (a) shall be liable to be prosecuted under the possession against the said vendee or his (b) we shall pay the entire consideration money together with loss and damage and interest at the rate of Rs. 2 per mensem per hundred rupees from the date of the execution of this deed till the date of realisation from our person and other properties (c) and we shall not claim the produce of the vended property for the period of vendee's possession against the said vendee or his heirs and representatives." 21 (10) "Therefore we, the executants ......… have executed this deed of conditional sale so that it may be of use in future." (13) We next turn to the conditions. The ones relevant to the present purpose are contained in Clauses (6) and (7). Both are ambiguous, but we have already said that on a fair construction clause (6) means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there. The necessary consequence of that is that the ostensible sale becomes void. Similarly, clause (7), though clumsily worded, can only mean that if the money is not paid, then the sale shall become absolute. Those are not the actual words used but, in our opinion, that is a fair construction of their meaning when the document is read as a whole. If that is what they mean, as we hold they do, then the matter falls squarely within the ambit of Section 58(c).” 39. The decision rendered in Chunchun Jha (supra) has been followed by Their Lordships of the Supreme Court in the matter of Srinivasaiah v. H.R. Channabasappa (since dead) by his Legal Representatives and others, (2017) 12 SCC 821. 40. Similarly, in the matter of Dharmajit Shankar Shinde and others v. Rajaram Shripad Joshi (dead) through legal representatives and others, (2019) 8 SCC 401 their Lordships of the Supreme Court has considered the provisions contained in Section 58(c) of the Transfer of Property Act, 1882 and has held that sale with a mere condition of re- transfer is not mortgage. It was further held that if the sale and agreement to repurchase are embodied in the separate documents then the transaction cannot be a “mortgage by conditional sale” irrespective of whether the documents are contemporaneously executed. It was further held that in case of single document, real character of the document is to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances and intention of the parties. 22 41. Aforesaid judgment of the Supreme Court in the matter of Dharmajit Shankar Shinde and others (supra) has been followed with approval by the Supreme Court in the matter of Sopan (DEAD) through his legal representatives v. Syed Nabi, (2019) 7 SCC 635. 42. In the matter of Prakash (Dead) by LRs Vs. G. Aradhya and Others, 2023 SCC Online SC 1025, the Hon’ble Supreme Court in paragraph 29 to 31 has held as under: “29.The scope of Section 58(c) of the 1882 Act4 was considered in detail in paras 27 to 33 thereof which are extracted below: “27. A bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage. It is not a partial transfer. By reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser (sic seller), and such a personal right would be lost, unless the same is exercised within the stipulated time. 28. In Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1 SCR 174 : AIR 1954 SC 345] this Court clearly held : (SCR p. 177) “We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts.” 29. Yet again in Mushir Mohd. Khan v. Sajeda Bano [(2000) 3 SCC 536] this Court upon construing Section 58(c) of the Transfer of Property Act opined : (SCC pp. 541-42, para 9) “9. The proviso to this clause was added by Act 20 of 1929 so as to set at rest the conflict of decisions on the question whether the conditions, specially the condition relating to reconveyance contained in a separate document could be taken into consideration in finding out whether a mortgage was intended to be created by the principal deed. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.” 30. Referring to Chunchun Jha [(1955) 1 SCR 174 : AIR 1954 SC 345] it was held : (SCC p. 544, para 14) “14. Applying the principles laid down above, the two documents read together would not constitute a ‘mortgage’ as the condition of repurchase is not contained in the same documents by which the property was sold. The proviso to clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a ‘mortgage by conditional sale’.” 31. In Umabai v. Nilkanth Dhondiba Chavan [(2005) 6 SCC 243] wherein one of us was a party, this Court held: “21. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with 23 a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to Section 58(c), however, states that if the condition for retransfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. (See : Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1 SCR 174 : AIR 1954 SC 345], Bhaskar Waman Joshi v. Narayan Rambilas Agarwal [(1960) 2 SCR 117 : AIR 1960 SC 301], K. Simrathmull v. S. Nanjalingiah Gowder [1962 Supp (3) SCR 476 : AIR 1963 SC 1182], Mushir Mohd. Khan [(2000) 3 SCC 536] and Tamboli Ramanlal Motilal [Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, 1993 Supp (1) SCC 295].)” 32. The High Court relied upon Indira Kaur v. Sheo Lal Kapoor [(1988) 2 SCC 488 : AIR 1988 SC 1074]. Therein the Court took into consideration the factors adumbrated therein, particularly, a long stipulated period of 10 years for conveying the property and the vendee was prohibited from selling and parting with his right, title and interest for 10 years. The vendor was allowed to occupy the property as a tenant on payment of Rs. 80 per month. No order of mutation was passed in his favour. It was held: “6. … In the present case having regard to the facts and circumstances highlighted in the course of the discussion pertaining to the question as to whether or not the transaction was a transaction of mortgage having regard to the real intention of the parties it would be difficult to hold that the agreement to sell executed by the defendant in favour of the plaintiff was by way of a ‘concession’. It was a transaction entered into by the defendant who was a hard-headed businessman and the documents in question have been carefully framed in legal terminology taking into account the relevant provisions of law. The transaction also discloses the awareness of the defendant about Section 58(c) of the Transfer of Property Act as is evident from the fact that the reconveyance clause is not embodied in the sale deed itself. In the agreement to sell, no reference has been made to the transaction of sale though it has been executed contemporaneously. The defendant who has permitted the plaintiff to continue in possession on payment of rent equivalent to about 13½ per cent interest and was evidently aware of all the dimensions of the matter would not have granted any concession or executed the agreement by way of a concession. The agreement was executed evidently because the plaintiff would not have executed the sale deed unless an agreement to sell by a contemporaneous document was also executed to enable the plaintiff to enforce specific performance within ten years. It was therefore a transaction entered into with open eyes by the defendant and there was no question of granting any concession.” 33. In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that, the appellant was put in possession of the land, his name was also mutated.” 30. A perusal of the aforesaid paras of the judgment shows that the proviso was added in Section 58(c) of the Act4 vide Act No. 20 of 1929, so as to put at rest the conflicting decisions on the issue. A deeming fiction was added in the negative that a transaction shall not 24 be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale. 31. The judgment of this Court in Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243, has also been referred to, which defines the distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with condition of repurchase is not a lending and borrowing arrangement. Proviso to Section 58(c) of the 1882 Act4 was referred to in the aforesaid judgment to hold that if the condition for re-transfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. The judgment of this Court in Ramlal's case (supra), relied upon by learned Senior counsel for the appellant, was specifically dealt with and distinguished in paras 34 and 35 thereof in Bishwanath Prasad Case (supra) and the same are extracted below: 34. In Ramlal v. Phagua this Court having regard to the peculiar fact situation obtaining therein opined : (SCC p. 173, para 18) “18. In our opinion, agreement to reconvey the property will not ipso facto lead to the conclusion that the sale is nominal and in view of the stand of Defendant 8, as also of the fact that the property worth Rs. 700 has been purportedly sold for Rs. 400, we are of the considered opinion that the sale deed dated 1-12- 1965 did not convey any title to Defendant 8. It is well settled by a catena of decisions that the vendor cannot convey to the vendee better title than she herself has.” 35. As of fact, it was held therein that the sale deed in question was not a real sale deed but was by way of a surety. In that case, furthermore, the defendant categorically admitted that the plaintiff had taken loan. It is in that situation, the transaction was held to be a mortgage. Apart from it, there were other circumstances which led the court to arrive at the said conclusion. The said decision, therefore, cannot have any application in the instant case.” 43. Reverting to the facts of the present case and in light of proviso to Section 58(c) of the Transfer of Property Act, 1882 and also on examination of the recitals of the sale deed dated 13.06.1969 it is quite vivid that document purports to be an absolute sale and it does not contain any stipulation for treating the sale as mortgage. The transaction cannot be regarded as mortgage, on the basis of the oral evidence and there is no embodiment of such agreement in the said deed. Therefore, the transaction in question, in absence of embodiment as contained in proviso to Section 58(c) of the Transfer of Property Act, 1882, cannot be regarded as mortgage and it is held 25 to be an outright sale. There is no other document which stipulate or transpires that it was an agreement of buy back or the vendor had requested the vendee to resale the property within the time given. However, despite sufficient length of time the plaintiff Saunpat has not challenged the deed dated 13.06.1969 and he claimed only title over the property despite knowing that a sale deed was executed by the defendant Nanku with respect to suit land. 44. Section 31 of the Specific Relief Act, 1963 provided that cancellation may be ordered and it is denied that if a document is executed and the said document is void or voidable and such person has reasonable apprehension that such deed, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, however, the plaintiff Saunpat has not claimed for cancellation of sale deed or declaration of said sale deed as null and void. Section 31 of the Specific Relief Act reads as under: “31. When cancellation may be ordered- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” 45. Thus, under the entire facts and circumstances of the case as well as law laid down by the Supreme Court in the aforesaid cases, this court does not find that the impugned judgment and decree passed by both the courts below suffers from any illegality or perversity except for granting means profit to the defendant Nanku. Though there is some sort of evidence produced by the parties with respect to earning of 26 crop from the suit land, however, considering the extent of the area of the suit land, value under which it was purchased by Nanku and the nature and quality of cultivation it cannot be said that the value of crop assessed by the trial court is correctly assessed. Except the self served statement of the party, no any other documentary evidence is led by them to prove the value of crop for which the defendant Nanku was put to loss from the income of the suit land. Therefore, that part of the impugned judgment and decree passed by the trial court that the defendant Nanku (Plaintiff in Civil Suit No.100-A/1987) is entitled for means profit from the year 1980-81 @ 1000/- per year till the actual delivery of possession is hereby set aside and the rest part of the judgment and decree are remain intact. 46. The substantial question of law are answered accordingly in favour of defendant Nanku (in Civil Suit No.96-A/1987 and plaintiff in Civil Suit No.100-A/1987) and it is held that the sale deed dated 13.06.1969 is an outright sale and not executed as security against the loan. 47. As a fallout and consequence of the above, Second Appeal No.174/2014 arising out of Civil Suit No.96-A/1987 is dismissed and Second Appeal No.175 of 2014 arising out of Civil Suit No.100-A/1987 is partly allowed. Decree with respect to means profit in favour of plaintiff Nanku @ 1000/- per year from 1980-81 till the delivery of actual possession is hereby set aside and the remaining part of that decree are affirmed. Parties to bear their own costs. 48. Appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge inder