Case Note & Summary
The appellants, Sanjay Punamchand Pipada and Zamkubai Punamchand Pipada, filed a second appeal against the judgment and decree of the Regular Civil Suit No.118/1996 and Regular Civil Appeal No.128/2001. The suit was filed for redemption of mortgage in respect of three properties: Gram Panchayat House No.974, 275, and 976, later given municipal numbers. The plaintiffs claimed that Punamchand, father of plaintiff No.1, was the owner of these properties and under a deed of mortgage dated 23-4-1970, he gave the property to defendant No.1, a cooperative society, for a loan of Rs.25,000/- with a period of 10 years. Punamchand died on 31-5-1984. The first two properties were in possession of defendant Nos.2 and 3 on rent basis. The Civil Judge, Junior Division, Kopargaon, dismissed the suit, and the first Appellate Court confirmed the decision. The High Court heard both sides. The court noted that the suit was filed after 26 years from the date of mortgage, which was beyond the limitation period. The concurrent findings of the courts below were based on facts and could not be interfered with in second appeal under Section 100 CPC. The court held that the appeal was devoid of merit and dismissed it. The decision was in favor of the respondents.
Headnote
A) Limitation - Mortgage Redemption - Article 61(a) of Limitation Act, 1963 - Suit for redemption filed after 26 years from the date of mortgage - Held that the suit was clearly barred by limitation as the period of 30 years from the date of mortgage had expired. (Paras 1-5)
B) Second Appeal - Concurrent Findings - Section 100 CPC - Interference with findings of fact - Held that the High Court cannot interfere with concurrent findings of fact unless there is a substantial question of law or perversity. (Paras 1-5)
C) Mortgage - Proof - Burden of Proof - Sections 58, 60 Transfer of Property Act, 1882 - The plaintiffs failed to prove the mortgage deed and the transaction - Held that the burden was on the plaintiffs to prove the mortgage and they failed to discharge it. (Paras 2-4)
Issue of Consideration
Whether the suit for redemption of mortgage was barred by limitation and whether the concurrent findings of the courts below could be interfered with in second appeal.
Final Decision
The second appeal is dismissed. The judgment and decree of the courts below are confirmed.
Law Points
- Limitation for redemption of mortgage
- Concurrent findings of fact
- Second appeal jurisdiction under Section 100 CPC
- Burden of proof in mortgage suits
Case Details
2014 LawText (BOM) (05) 13
Second Appeal No.721 of 2008
Shri. V.J. Dixit, Senior Advocate, holding for Shri. A.N. Nagargoje, Advocate, for appellants; Shri. V.D. Salunke, Advocate, holding for Shri. N.R. Bhavar, Advocate, for respondent No.1; Shri. A.S. Gandhi, Advocate for respondent No.2 1(A).
Sanjay s/o. Punamchand Pipada and Zamkubai W/o Punamchand Pipada
Rahata Vividh Karyakari Society Ltd., Smt. Laxmibai Baban Harale (deceased through LRs), Digambar s/o Udhavrao Bhatode (deceased through LR Dnyaneshwar S/o Digambar Bhatode)
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Nature of Litigation
Second appeal against dismissal of suit for redemption of mortgage.
Remedy Sought
Appellants sought redemption of mortgage and possession of properties.
Filing Reason
Appellants claimed that their predecessor had mortgaged properties to respondent No.1 in 1970 and sought redemption after his death.
Previous Decisions
The Civil Judge, Junior Division, Kopargaon dismissed the suit (RCS No.118/1996) and the first Appellate Court confirmed the dismissal (RCA No.128/2001).
Issues
Whether the suit for redemption of mortgage was barred by limitation?
Whether the concurrent findings of fact can be interfered with in second appeal?
Submissions/Arguments
Appellants argued that the mortgage was valid and they were entitled to redemption.
Respondents contended that the suit was barred by limitation and the mortgage was not proved.
Ratio Decidendi
The suit for redemption of mortgage was filed after 26 years, which is beyond the limitation period under Article 61(a) of the Limitation Act, 1963. The concurrent findings of fact by the lower courts cannot be interfered with in second appeal under Section 100 CPC as no substantial question of law arises.
Judgment Excerpts
The appeal is filed against the judgment and decree of Regular Civil Suit No.118/1996 and Regular Civil Appeal No.128/2001.
The suit was filed in respect of three properties like House property Gram Panchayat House No.974, Gram Panchayat House No.275 and Gram Panchayat House No.976.
It is the case of the plaintiffs that father of the plaintiff No.1 namely Punamchand was owner of these properties and under a deed of mortgage dated 23-4-1970 he gave the property to defendant No.1, one cooperative society.
Procedural History
The suit (RCS No.118/1996) was dismissed by the Civil Judge, Junior Division, Kopargaon. The first appeal (RCA No.128/2001) was dismissed by the first Appellate Court. The present second appeal (SA No.721/2008) was filed in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 100
- Limitation Act, 1963: Article 61(a)
- Transfer of Property Act, 1882: Sections 58, 60
