Point in Issue :
Whether in the facts of the case second appeal is maintainable.

Rajesh H.Shukla, J.—The present second appeal has been filed prior to the amendment in Code of Civil Procedure in 1976 as well as pronouncement of the Hon’ble Apex Court laying down guidelines that question of law has to be framed by the court for entertaining the second appeal under Section 100 of CPC. However, the points or issues which have been raised are required to be focused and the appellant has, though not specifically formulated the issues, the issues which require consideration of this court in the present second appeal are

(a) whether it is established that the document exhibit 62 was executed and what is the evidential value?

(b) even if the document exhibit 62 is executed, what would be the effect for the purpose of deciding further controversy with regard to the title?

(c ) whether ithe concurrent findings of facts arrived at by both the courts below with regard to the fact that there was no right, title, interest in the land in question and it was not mortgaged and therefore there was no question of any right of redemption, can be said to be erroneous?

2. The facts of the case, briefly stated, are that the appellant-original plaintiff filed Regular Civil Suit No. 69/70 before the Court of Civil Judge (J.D.), Mundra, for redemption of mortgage property on the grounds mentioned in the suit. After appreciating the evidence and hearing the learned advocates for the parties, the learned Civil Judge (J.D.), Mundra-Kutch at Bhuj, vide judgment and order dated 29.8.1973, dismissed the suit. Therefore, Regular Civil Appeal No. 117/73 came to be preferred before the District Court (lower appellate court) challenging the said judgment. The said appeal came to be dismissed by the lower appellate court vide judgment and order dated 19.7.1976 confirming the order of the trial court. Therefore, the present second appeal has been preferred on the grounds set out in this appeal, inter alia, that both the courts below have erred in not holding that the suit mortgage was not proved. It is also contended that the lower appellate court has erred in not giving weightage to the agreement, Exh. 62, which proved the ownership of the plaintiff’s ancestors. It is also contended that the agreement, Exh. 62, is an ancient document and the presumption about the execution and genuineness of the document could have been raised under Section 90 of the Evidence Act.

3. Learned Sr. Counsel Mr. Naik submitted that the appellant is the original plaintiff and the suit was filed for redemption of the mortgage. He submitted that the case of the plaintiff is that the plaintiff made a mortgage of the said property with the right of redemption. He submitted that the mortgage deed has been executed on Ashad Sud 3, Samvat Year 1991 and the term of the mortgage was 15 years for consideration of 300 koris.

4. Learned Sr. Counsel Mr. Naik submitted that, however, the two mortgagees have sold the property by executing a sale deed dated 26.4.1968 and therefore it has given rise to this litigation. He submitted that Regular Civil Suit No. 69/70 came to be filed by the appellant-original plaintiff for redemption and possession of the suit property as he was ready and willing to discharge the burden of making payment of the amount. He referred to Exh. 62 which is a writing for execution of mortgage and submitted that this document is an ancient document which ought to have been considered and proper weightage ought to have been given. Learned Sr. Counsel Mr. Naik submitted that as per Section 90 of the Evidence Act the presumption has to be made about the execution and genuineness of the document if the document is 30 years old. He submitted that both the courts have erred in not considering this document or giving proper weightage to it, which has resulted in miscarriage of justice. He submitted that both the courts below have failed to appreciate that the plaintiff was ready and willing to pay for the right of redemption.

5. Learned Sr. Counsel Mr. Naik refe