PANCH NAGAR PARAKH Vs. PURUSHOTTAM DAS

JUDGEMENT

(1.) THIS second appeal under section 100 of .P. Code is preferred by the defendant against the judgment and decree, dated 10.8.1976, passed by District Judge, Mandsour in civil First Appeal No. 60-A of 1973 which arises out of judgment and decree dated 29.10.1973, passed by Civil Judge, Class II,Mandsour in civil suit No. 112-A of 1968. This being a second appeal filed by the appellant prior to amendment brought about in C.P.C. including section 100 and hence, by virtue of section 97(m) of the Amending Act, this appeal has to be heard and decided as if the Amending Act had not come into operation. In other words, it is not necessary for this Court to comply trie requirement of amended section 100 ibid and frame any substantial question of law said to arise out of the impugned judgment, decree for deciding this appeal.

(2.) THE issue involved in this appeal is short but legal one. It is indeed framed by their Lordships of Supreme Court in this very case calling upon this Court to give findings on the two issues framed while deciding the appeal on merits. However, in order to appreciate the issues involved and how they arose, it is necessary to state few relevant facts which are now part of judicial verdicts rendered from time to time in this litigation.

(3.) ON 10.8.1968, Purushottam Das and Mathri Bai being son and daughter of late Dwarkadas, claiming to have succeeded to his estate including the aforementioned mortgaged land filed a suit out of which this appeal arises against the appellant (being mortgagee) on the strength of mortgage deed dated 26.7.1934, claiming a decree for redemption of 1/3rd share in the said agricultural land. The defendant (appellant herein) resisted the suit on several grounds including legal grounds, such as maintainability of suit, limitation, divesting of title, etc. The trial Court decreed the suit for redemption of possessory mortgage on payment of mortgage money and cost. This decree was upheld in first appeal as also in second appeal by this Court, giving rise to take SLP to Supreme Court by the defendant being C.A. No. 235 of 1995. Their Lordships went into several issues in great detail and examined them in the context of State Revenue Laws then applicable to the facts of this case and found that some of the issues (two in particular) which do arise out of the controversy, were not dealt with by any of the Courts below, muchless in detail. This is what their Lordships observed :