JUDGMENT:

This appeal under Article 136 is against the judgment of the High Court of Gujarat in Second Appeal No. 98 of 1973 dated August 6, 1973. The appellants predecessor was inducted in Fields Nos. 439 and 676 as an usufructuary mortgagee in the year 1945. On expiry of the period of redemption prescribed therein, that is, 25 years, the suit for redemption was filed in 1970 by the respondents. The trial Court decreed the suit subject to payment of damages for improvements. On appeal, the District Court confirmed the decree for redemption but setaside the decree for damages. In second appeal, the High Court confirmed the decree of the appellate Court. Thus this appeal.

2. In the High Court, the appellants sought two contentions, namely, by operation of Section 2-A which was brought by way of amendment of Section 48 to the Bombay Tenancy Act, 1939, the mortgagee became a deemed tenant. It was not permitted to argue as is not a pure question of law but is a mixed question of law and fact which needs investigation of facts. It was neither raised in the pleadings nor argued either before the trial Court or the appellate Court. Therefore, the question raised in the second appeal for the