JUDGMENT

1/ This second appeal under Section 100 of the Code of Civil

Procedure, 1908 (in short CPC) preferred by the appellant/plaintiff challenging the concurrent judgments of the two courts below. Trial court vide judgment and decree dated 26.9.2008 had dismissed the civil suit No. 5A/2002 filed by appellant/plaintiff and the first appellate court vide the judgment dated 22.12.2009 by dismissing the regular civil appeal no. 19A/2008 has affirmed the judgment and decree passed by the trial court.

2/ Brief facts of the case are that the appellant/plaintiff filed a civil suit for decree of redemption of mortgage and also possession of the suit land bearing survey No. 37/1 area 6.62 acres situated at village Pansemal by stating that father of appellant late Shivnarayan had mortgaged the suit land on 17.3.1969 with Janaki Devi mother of respondent for the period of five years, through a document titled as 'Shartiya Farokhtnama'. After five years when appellant tried to redeem the mortgage, the respondent did not give any response. Hence the appellant on 11.3.2002 served a notice to respondent to inform him that he should accept the remaining consideration of Rs. 11,000/- and handed over possession of suit land to the appellant. The respondent in the reply of said notice even specially denied the execution of any such document, thereafter appellant has preferred this civil suit.

3/ The respondent/defendant before the trial court denied all the plaint averment by pleaded in his written statement that suit land bearing survey No. 37/1 area 4.95 acres, out of 6.62 acres, had been sold out by late Shiv Narayan before the year 1971 to Kalawatibai and Shivnarayan was having 1.67 acres of land only. No deed of mortgage has been executed by late Shivnarayan, it is document of sale. The appellant alone has no locus standi to file aforesaid civil suit without impleading the legal heirs of late Shivnarayan as necessary party, the suit is also time barred, therefore,the suit is not maintainable.

4/ On the aforesaid pleadings, the trial court has framed issues and directed both the parties to lead their evidence. After recording and appreciating the evidence, the trial court has dismissed the civil suit filed by plaintiff. Thereafter the appellant/plaintiff preferred an appeal before the lower appellate court against the impugned judgment and decree, but upon re-appreciating the entire evidence on record, the same has also been dismissed by the first appellate court. Being aggrieved by judgments and decrees, the appellant has preferred this second appeal.

5/ Learned counsel for appellant submits that the impugned judgment and decree passed by the courts below are against the law, fact and evidence available on record. The trial court has not considered the oral as well as documentary evidence given by appellant in support of his case. Both the courts below have ignored the provisions of Section 61(A) of Limitation Act 1963, therefore, the suit is within limitation period. The appellant is the Karta of Hindu undivided family is duly entitled to file this civil suit without implicating other heirs,therefore, finding given by the courts below regarding non joinder of necessary party is erroneous and suit is not barred by the principle of estoppel under Section 115 of Indian Evidence Act. Thus, in view of the aforesaid, learned counsel for the appellant submits that the appeal deserves to be allowed on the substantial questions of law framed by this court.

6/ In the instant case, the following substantial questions of law has been framed vide order dated 2.8.2011:

1. Whether the courts below have committed illegality in treating the document Ex.P-1 as an outright sale deed despite overlooking to the condition impounded in the document itself?

2. Whether the suit as instituted can be treated as barred by limitation, despite having been instituted within the prescribed period of 30 years?

3 Whether the suit by one of the heirs of the deceased mortgagor, is