CHANDRAKANT CHINTAMAN MOOG Vs. PANDURANG CHANDUSA SOLANKI

JUDGEMENT

(1.) THE only question to be decided in this Second Appeal is whether Exhibit 52 Agreement dated 1-11-1968 is a mortgage or is a lease agreement?

(2.) THE original plaintiff in this case is the appellant in this appeal while Respondent in this case is the original defendant. THE plaintiff filled suit being Special/Civil Suit No.33 of 1977 in the Court of Civil Judge, Senior Division at Kolhapur for redemption of the mortgage property. THE mortgaged property is the shop.

(3.) AGAINST the said Judgment and Decree passed by the Lower Appellate Court dated 28th February, 1983, plaintiff preferred this Second Appeal. Mr.Apte, the learned counsel appearing on behalf of the plaintiff contended that the lower appellate court completely misconstrued documentary evidence more particularly Exhibit 52. Mr.Apte, learned counsel also assailed the judgment of the lower appellate court on the ground that the same is mainly on the conjecture and surmises and contended the same may be set aside and the Judgment and Decree passed by the trial court may be confirmed. As against this Mr.Abhyankar, learned counsel appearing on behalf of the defendant contended that various clauses in Exhibit 52 are consistent with the lease rather than mortgage. Mr.Abhyankar, therefore, contended that lower appellate court's judgment, therefore, may be confirmed and findings of facts given by the lower appellate court should not be disturbed in the second appeal.