SHETHIA NAVINCHANDRA VALLABH BHAI Vs. CHANIA ALI UMAR

JUDGEMENT

(1.) The present second appeal has been filed prior to the amendment in Code of Civil Procedure in 1976 as well as pronouncement of the Hon'ble Apex Court laying down guidelines that question of law has to be framed by the court for entertaining the second appeal under Section 100 of Code of Civil Procedure. However, the points or issues which have been raised are required to be focused and the Appellant has, though not specifically formulated the issues, the issues which require consideration of this Court in the present second appeal are

(2.) The facts of the case, briefly stated, are that the Appellant-original Plaintiff filed Regular Civil Suit No. 69/70 before the Court of Civil Judge (J.D.), Mundra, for redemption of mortgage property on the grounds mentioned in the suit. After appreciating the evidence and hearing the learned advocates for the parties, the learned Civil Judge (J.D.), Mundra-Kutch at Bhuj, vide judgment and order dated 29.8.1973, dismissed the suit. Therefore, Regular Civil Appeal No. 117/73 came to be preferred before the District Court (lower appellate court) challenging the said judgment. The said appeal came to be dismissed by the lower appellate court vide judgment and order dated 19.7.1976 confirming the order of the trial court. Therefore, the present second appeal has been preferred on the grounds set out in this appeal, inter alia, that both the courts below have erred in not holding that the suit mortgage was not proved. It is also contended that the lower appellate court has erred in not giving weightage to the agreement, Exh. 62, which proved the ownership of the Plaintiff's ancestors. It is also contended that the agreement, Exh. 62, is an ancient document and the presumption about the execution and genuineness of the document could have been raised under Section 90 of the Evidence Act.

(3.) Learned Sr. Counsel Mr. Naik submitted that the Appellant is the original Plaintiff and the suit was filed for redemption of the mortgage. He submitted that the case of the Plaintiff is that the Plaintiff made a mortgage of the said property with the right of redemption. He submitted that the mortgage deed has been executed on Ashad Sud 3, Samvat Year 1991 and the term of the mortgage was 15 years for consideration of 300 koris.