Ramain Prasad (dead) by LRs. & Ors. Vs. Jagdish Prasad (dead) by LRs. & Ors.
EmailAppeal: Civil Appeal No. 100 of 1984
Petitioner: Ramain Prasad (dead) by LRs. & Ors.
Respondent: Jagdish Prasad (dead) by LRs. & Ors.
Apeal: Civil Appeal No. 100 of 1984
Judges: V.N.KHARE & S.N. PHUKAN, JJ.
Date of Judgment: Aug 17, 2000
Head Note:
PRACTICE AND PROCEDURE
Constitution
Article 136 – Finding of fact by first Appellate Court that plaintiff was not mortgagor – Finding affirmed by High Court that mortgage was not proved – Trial court’s findings contradictory. Held that in view of the concurrent findings by the Appellate Courts, no interference is called for.
(Para 4)
JUDGEMENT:
ORDER
1. IA No. 2. of 1999 is allowed.
2. This is the plaintiffs’ appeal. The plaintiffs brought a suit for redemption of mortgage as well as for possession. The trial court found that the father of the plaintiffs, Wasudeo, was a patta holder, and, therefore, the plaintiffs are entitled to a decree for possession. However, the case of plaintiffs that they are mortgagors was not accepted and no relief was granted by the trial court to that affect. Aggrieved, the defendants – respondents filed an appeal before the first Appellate Court. The first Appellate Court found that the mortgage was not proved and in fact, it was defendant no. 2 who remained in possession over the land for considerable period of time. The first Appellate Court also found that the plaintiffs’ predecessor by Ext. D-1 surrendered the right in favour of defendant no. 2. Consequently, the appeal was allowed and the decree of the trial court was set aside. The plaintiffs’ second appeal was dismissed by the High Court. It is against the said judgment, the plaintiffs are in appeal before us.
3. Learned Counsel appearing for the appellants urged that the trial court having recorded a finding that the plaintiffs were the mortgagors and defendant no.1 was the mortgagee, the first Appellate Court and the second Appellate Court fell in error in holding that the trial court has held that the plaintiffs are not mortgagors.
4. We have looked into the judgment and we find that at one place, the trial court, no doubt, has held that Jagdish Prasad, defendant no. 1 held the suit land as plaintiff’s mortgagee whereas at a subsequent place, the trial court has held that the plaintiffs have failed to prove the mortgage, therefore, no decree of redemption can be passed. In view of these two contradictory findings, it cannot be held that the trial court has categorically held that the plaintiffs were the mortgagors. The first Appellate Court and the second Appellate Court have concurrently held that the mortgage was not proved. This finding is a finding of fact, which is based on appreciation of evidence. No case is made out for interference. The appeal is accordingly dismissed. There shall be no order as to costs.
1. IA No. 2. of 1999 is allowed.
2. This is the plaintiffs’ appeal. The plaintiffs brought a suit for redemption of mortgage as well as for possession. The trial court found that the father of the plaintiffs, Wasudeo, was a patta holder, and, therefore, the plaintiffs are entitled to a decree for possession. However, the case of plaintiffs that they are mortgagors was not accepted and no relief was granted by the trial court to that affect. Aggrieved, the defendants – respondents filed an appeal before the first Appellate Court. The first Appellate Court found that the mortgage was not proved and in fact, it was defendant no. 2 who remained in possession over the land for considerable period of time. The first Appellate Court also found that the plaintiffs’ predecessor by Ext. D-1 surrendered the right in favour of defendant no. 2. Consequently, the appeal was allowed and the decree of the trial court was set aside. The plaintiffs’ second appeal was dismissed by the High Court. It is against the said judgment, the plaintiffs are in appeal before us.
3. Learned Counsel appearing for the appellants urged that the trial court having recorded a finding that the plaintiffs were the mortgagors and defendant no.1 was the mortgagee, the first Appellate Court and the second Appellate Court fell in error in holding that the trial court has held that the plaintiffs are not mortgagors.
4. We have looked into the judgment and we find that at one place, the trial court, no doubt, has held that Jagdish Prasad, defendant no. 1 held the suit land as plaintiff’s mortgagee whereas at a subsequent place, the trial court has held that the plaintiffs have failed to prove the mortgage, therefore, no decree of redemption can be passed. In view of these two contradictory findings, it cannot be held that the trial court has categorically held that the plaintiffs were the mortgagors. The first Appellate Court and the second Appellate Court have concurrently held that the mortgage was not proved. This finding is a finding of fact, which is based on appreciation of evidence. No case is made out for interference. The appeal is accordingly dismissed. There shall be no order as to costs.
