A finding of fact based on no evidence or surmises and conjectures can be set aside in second appeal.

S.D.Bajaj, J.

1. The plaintiff-respondent Smt. Pushpawati mortgaged the shop No. 6 forming part of Rekhi Mansion situated outside Rekbi Cinema Ludhiana. in favour of defendants for Rs. 5000/- vide registered mortgage deed dated 10th September, 1970, copy Exhibit P.W. 2/B, for a period of one year. Alleging that the defendants had not redeemed the mortgaged property in dispute on the expiry of one year period. plaintiff-respondent filed before the learned trial court a suit for recovery of possession of the mortgaged property by redemption on payment of Rs. 5,000/- on 17th January, 1972.

2. The suit was contested by defendant appellant alleging that the alleged mortgage was a sham transaction and in reality defend and appellant had taken the shop on rent on payment of monthly rent at the rate of Rs. 150/- per mensem. A sum of Rs. 1800/- was alleged to have been paid in advance simultaneously with the execution of the alleged mortgage deed on account of rent for the stipulated period of one year and that further rent at the agreed rate had also been duly paid upto December, 1971. It was stated that the amount of Rs. 5,000/- was, or course, to be returned to defendants on their vacating the shop taken on rent by them from plaintiff-respondent. It was also asserted that relationship of landlord and tenant having been brought about between the parties, civil court had no jurisdiction to entertain and adjudicate upon the suit for redemption.

3. On the pleadings of the parties learned trial court framed the following issues:

1. Whether the mortgage deed in dispute, dated 10-9-1970 is a sham document and the amount of Rs. 5,000/- mentioned in it to have been paid as mortgage money was not paid, as such, but as a pugree to the plaintiff, as alleged in the written statement?

2. Whether there exists a relationship of landlord and tenant between the parties and not that of a mortgagor and mortgagee que the property in dispute?

3. If relationship of landlord and tenant is proved between the parties. has this court jurisdiction to take cognizance of the subject matter in dispute?

4. Relief.

4. Vide its judgment dated 3 1 st, May, 1975, learned trial court decided all the three issues against defendants and decreed the suit. Appeal filed by defendants against the decision of the learned trial court was also dismissed by the learned Additional District Judge, Ludhiana, with costs on 31st July, 1978. Feeling aggrieved from the judgments and decrees of both the learned courts below, the appellant has filed R.S.A. No 1260 of 1978 in this Court.

5. First and foremost question which crops up for consideration is whether the concurrent finding of fact, recorded by the learned two courts below, can be disturbed by this court in second appeal. Relevant section 130 of the Code of Civil Procedure, 1908 reads, "(I) Save where otherwise expressly provided in the body of this Code or by, any other law for the time being in force, an appeal shall lie to the High Court from every degree passed if appeal by any Court subordinate to High Court on any of the following grounds, namely ;-(a) the decision king contrary to law or to some usage having the force of law, (b) the decision having failed to determine some material issue of law or usage having the force of law; (c0 a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this section from an appellate decree passed exparte." It would thus appear that a second appeal will lie on the following grounds

(1) The decision being contrary to law.

(2) The decision being contrary to usage having the force of law.

(3) Failure to determine some material issue of law.

(4) Failure to determine some material issue of usage having the force of law.

(5) Substantial error or defect in procedure which may possibly have affected