Case Note & Summary
The appellant, Gulabrao Vishwas Desai, filed a second appeal before the Bombay High Court against the judgment and order dated 3rd August 1988 passed by the first appellate court, which had upheld the trial court's dismissal of his suit for redemption of mortgage. The appellant had originally filed Regular Civil Suit No.33 of 1982 before the Civil Judge, Junior Division, Ajara, claiming that the suit property was mortgaged with the defendant on 27th January 1968 for Rs.2,000/- and that the defendant had refused to redeem the property. The trial court framed two issues: (1) whether the plaintiff proved that the suit property was mortgaged with the defendant on 27/1/68 for Rs.2,000/-, and (2) whether he further proved that the defendant refused to redeem the property. Both issues were answered against the plaintiff, and the suit was dismissed. The first appellate court confirmed this decision. In the second appeal, the appellant argued that the courts below had erred in their appreciation of evidence and that substantial questions of law arose. However, the High Court, after hearing the counsel for the appellant and the respondents, found that the findings of the courts below were concurrent findings of fact based on evidence. The court noted that the appellant had failed to prove the mortgage and the refusal to redeem. The High Court held that no substantial question of law was involved in the appeal, as the concurrent findings were not shown to be perverse or contrary to law. Consequently, the second appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - Concurrent findings of fact - The appellant challenged concurrent findings of the trial court and first appellate court dismissing his suit for redemption of mortgage. The High Court held that no substantial question of law arose as the findings were based on appreciation of evidence and were not perverse. (Paras 1-3) B) Mortgage - Redemption - Burden of Proof - Transfer of Property Act, 1882, Section 58 - The plaintiff failed to prove the existence of the mortgage deed dated 27/1/1968 and the defendant's refusal to redeem. The courts below correctly held that the burden was on the plaintiff to prove the mortgage and that he had not discharged it. (Paras 1-2)
Issue of Consideration
Whether the appellant proved that the suit property was mortgaged with the defendant on 27/1/1968 for Rs.2,000/- and that the defendant refused to redeem the property.
Final Decision
The second appeal is dismissed with no order as to costs.
Law Points
- Concurrent findings of fact
- Substantial question of law under Section 100 CPC
- Burden of proof in mortgage
- Redemption suit
