JUDGMENT 1. - Heard learned counsel. 2. This second appeal of the defendant is directed against the concurrent decree of two courts below in the suit for Redemption of Mortgage in respect of suit shop situated at Kacholiya Building, Bhilwara. The description of the suit shop is given in para no.1 of the plaint as well as in para no.1 of the impugned judgment of learned trial court. On the Eastern side of the suit shop is a public way, whereas, on the Western side, there is a residential house of the plaintiff and on the Northern and Southern side, the other shops of the plaintiff are stated to be situated. In Ex.1, mortgage deed dated 6/10/1990 registered with Sub Register, it is stated that said suit shop was given on mortgage to the defendant in lieu of Rs. 10,000/- advanced by the defendant to the plaintiff. 3. Upon the suit being filed for redemption of mortgage, the defendant appellant took the defence that said mortgage was in respect of other shop, which was lying vacant and stamp on which the mortgage deed - Ex.1 was written, bore the signature of defendant Ashok Kumar on a blank paper and plaintiff had got the said mortgage deed typed later on and got the same registered without knowledge of the defendant. The defendant appellant took the plea that the suit shop claimed to be under mortgage deed was in fact given on rent to his brother-Manoj Kumar and his brother Manoj Kumar was paying monthly rent to the son of plaintiff, Mr. Naresh, a boy of 151/2 years. 4. Learned trial court in its judgment dated 21/8/2008 while decreeing the suit of redemption of mortgage in favour of the plaintiff found while deciding the issue nos. 1, 2 and 4 simultaneously that there was no rent note in favour of brother of the defendant, Ashok Kumar, namely, Manoj Kumar in respect of said shop and in fact said Manoj Kumar was carrying on the business under the name and style of Fashion Queue in the suit shop itself. The learned trial court also found that there was contradiction in the defence of various defence witnesses about the rent of the shop in question to be Rs. 700/-, Rs. 800/- and Rs. 900/-.
The learned trial court also found that there was contradiction in the defence of various defence witnesses about the rent of the shop in question to be Rs. 700/-, Rs. 800/- and Rs. 900/-. Since the defendant claimed that monthly rent of shop in question was being paid to Naresh Kumar, who was studying in 10th -11th standard at the relevant point of time, the learned trial court also drew adverse inference against defendant that he ought to have produced Naresh Kumar in the witness box & in the absence of same, the defendant Ashok Kumar was liable to handover the possession of the suit shop in question upon repayment of Rs. 10,000/- by the plaintiff for redemption of mortgage of the suit shop in question. 5. The appellate court affirmed the said decree while dismissing the defendant's appeal No. 66/2008 by its judgment dated 30/5/2011 discussing the aforesaid evidence again. 6. Learned counsel for the appellant-defendant, Mr. N.K.Rastogi relying upon the decision of this Court in the case of Laxman & Ors. v. Banshi lal & Anr.- 2011 (2) DNJ (Raj.) 881 submitted that finding on three issues could not be returned jointly by the learned trial court and each issue should have been separately decided by it. Similarly, according to the learned counsel for the appellant-defendant, the appellate court has also fallen in error in not deciding the issues again re-appreciating the evidence as mandated under Order 41, Rule 31 CPC. 7. Having heard the learned counsel, this Court is of the opinion that no substantial question of law arises in the present second appeal. In the judgment cited at the bar before this Court, the coordinate bench upheld the remand order where the first appellate court found that trial court did not decide each issues separately by recording finding separately on each issues. The appellate court had remanded the matter back to the learned trial court, which was challenged before this Court and dismissing the misc. appeal, this Court held that such remand order could not faulted. This judgment is apparently not applicable to the facts obtaining in the present case. 8.
The appellate court had remanded the matter back to the learned trial court, which was challenged before this Court and dismissing the misc. appeal, this Court held that such remand order could not faulted. This judgment is apparently not applicable to the facts obtaining in the present case. 8. Similarly, another judgment relied upon by the learned counsel for the appellant in the case of Parimal v. Veena @ Bharti - 2011 DNJ (SC) 219 , wherein, the Apex court set aside the ex-parte decree in a divorce matter in a matrimonial dispute and held that first appellate court ought to have formulated the points for its determination and independently weigh the evidence on the issues, is equally not applicable to the facts of the present case as this Court finds that both the courts below have independently appreciated each of the evidences brought before the learned trial court and have returned separate findings on all the issues. Merely because the issues have been clubbed together for determination like issue nos. 1, 2 and 4 in the present case involving common appreciation of evidence, it does not mean that judgment is vitiated merely because each issue is not separately mentioned, evidence discussed and finding returned. It is for the convenience of the trial court that issues are framed on the basis of pleadings of both the parties and on the basis of evidence led before it, the issues may either be separately decided or some of the issues based on common evidence are decided jointly returning separate findings thereon. 9. This Court in the present case finds that findings on all the issues have been returned separately by both the Courts below. The appellate court has also discussed in detail the evidence separately while affirming the findings of trial court. Therefore, appreciation of evidence by the first appellate court in the judgment running into 17 pages cannot be said to be cryptic or in breach of the terms of Order 41, Rule 31 CPC. 10. Having perused the impugned judgment and decree, this Court is of the opinion that no substantial question of law arises in the present case for consideration by this Court and the present second appeal being devoid of merit is liable to be dismissed and same is accordingly dismissed. Copy of this order be sent to the opposite side forthwith.Second Appeal Dismissed. *******