RUKSHAMANIBEN Vs. BAI BHURIBEN RADHKISHAN

JUDGEMENT

(1.) THE present Second Appeal has been filed by the Appellant- Original Plaintiff posing the following substantial questions of law as follows;

(2.) THE facts of the case briefly stated are that Civil Suit No. 17 of 1981 was filed by the Plaintiff for redemption and possession of the suit property on repayment of the amount. On appreciation of evidence and after hearing the learned advocates for the parties, the suit was partly allowed, and while allowing the suit partly, the order for possession was passed that the possession of the mortgaged property, which has been redeemed, may be given symbolic, as per the judgment passed by the learned Civil Judge (JD), Jhalod dated 30.3.1984. It is against this judgment, Regular Civil Appeal No. 54 of 1984 came to be filed by the Appellant ? Original Plaintiff. THE First Appellate Court (District Judge, Panchmahals, at Godhra), on appreciation and scrutiny of the evidence, and after considering the rival submissions, dismissed the Appeal and also the cross-objections vide judgment and order dated 16.11.1987. THErefore, the present Second Appeal has been preferred by the Appellant ? Original Plaintiff posing the substantial questions of law as stated above, on the grounds inter alia that both the courts below have committed an error in appreciating that on execution of mortgage deed (Exh.34 and Exh.35), their remained no right in favour of the Respondents mortgagee. It is also contended that both the courts below have failed to construe the mortgage deed (Exh.34 and Exh.35), which clearly suggest that the Respondent is not a tenant, and on redemption, the actual physical possession of the property has to be handed over to the Appellant ? mortgagor. It is therefore contended that both the courts below have committed grave error in refusing the case of the Appellant for the actual possession.

(3.) LEARNED Counsel Mr. Shah submitted that in the mortgage deed (Exh.34 and Exh.35), there is no mention about the property having been already given on rent, or the occupation and possession by the tenant, or any tenancy rights or that there was a sitting tenant in the property. LEARNED Counsel Mr. Shah therefore submitted that if there is no such mention, the specific writing in the mortgage deed (Exh.34 and Exh.35) cannot be ignored, and without any basis, the presumption could not have been made about the tenancy rights and the possession by the tenant. Therefore, learned Counsel Mr. Shah submitted that the present Second Appeal may be allowed.