JUDGMENT Pramod Kumar Srivastava, J. – Heard learned counsel for the parties on admission of second appeal and perused the records of the lower courts. 2. It has been admitted fact between the parties that original owner of disputed property were Prabhu and his two sons Chhedi Lal and Mewa Lal, who had mortgaged this property to Chhote Lal for 45 years. Admittedly possession of this mortgaged property of house no. S-18/139 was handed over to mortgagee Chhote Lal, and the boundaries of this property was mentioned in registered mortgage-deed dated 23.08.1940. Admittedly Mewa Lal and his wife had died, who were survived by son Ganesh (defendant no.-2); and Prabhu had also died. Mortgagor Chhedi Lal (plaintiff no.-1) and his sons Basant Lal (plaintiff no.-2) and Babu Lal (plaintiff no.-3) had filedoriginal suit no. 400/1979 (Chhedi Lal & others v. Heera Lal and others) for redemption of aforesaid mortgaged property on 11.7.1979 in which seven defendants were wife, sons and daughters of late mortgagee Chhote Lal. The original suit was filed with the averment that registered mortgage-deed dated 23.8.1940 was executed by Prabhu, Chhedi and Mewa Lal to Chhote Lal for 45 years with condition that during this period of mortgage, the mortgagee will use the property the way he likes but he will have to take care of said property by maintenance and shall pay the taxes and furnish the details of expenses and can perform maintenance only after permission of mortgagors. But when the plaintiffs had given notice to defendants, then said notice was replied by defendants, from which it appeared that defendants have raised unauthorized constructions over mortgaged property without consent of the mortgagors and are not ready to perform their part of contract of mortgage. Since original mortgagee Chhote Lal had died and his legal representatives (defendants) are not discharging their duty under contract of mortgage, therefore plaintiffs are filing suit for redemption of mortgage. Original suit was filed by mortgagor Chhedi Lal and his two sons. Since other two mortgagors Prabhu and Mewa lal had also died and defendant no.-2 Ganesh is only other legal heir of Mewa Lal, and who is not available at the time of institution of suit, therefore suit is also filed on behalf of defendant no.-2 Ganesh (legal representative of deceased mortgagors) impleading him as proforma defendant in the suit. Since other two mortgagors Prabhu and Mewa lal had also died and defendant no.-2 Ganesh is only other legal heir of Mewa Lal, and who is not available at the time of institution of suit, therefore suit is also filed on behalf of defendant no.-2 Ganesh (legal representative of deceased mortgagors) impleading him as proforma defendant in the suit. The only relief sought in the plaint was for redemption of aforesaid mortgaged property. 3. Initially in the plaint disputed property was mentioned as house no. S-18/140 Raja Bazar, Varanasi whereas mortgage-deed was executed for house no. S-18/139 Raja Bazar, Varanasi. But during pendency of the suit, amendment was incorporated to the effect that detail of mortgaged property was erroneously written due to clerical error, as disputed property is house no. S-18/139 but boundaries and location of plot no.-139 and plot no.-140 are the same. It was also mentioned in the amended plaint that defendants have tried to get their name mutated in Nagar Mahapalika records as owner of disputed property, without knowledge or information to plaintiffs, therefore they cannot get benefit of any such mutation. The disputed mortgaged property is the same at present as it was at the time of execution of mortgage-deed. 4. Out of two defendants, defendant no.-2 was proforma defendant for whose benefit and on whose behalf other plaintiffs had filed original suit for redemption of mortgage, and he had not filed any written statement. 5. The other defendants no.-1 and no.-3 to 7 were legal heirs of original mortgagee Chhote Lal. Out of these the defendants no.-3 to 7 had not contested the suit. This case was contested only by defendant no.-1 Heera Lal who had initially filed written statement dated 20.01.1980 by which he had denied the plaint averments and pleaded that defendants had constructed new courtyard, kitchen, varandah, latrine and other rooms in which they spent much money. They had also been getting the disputed property white washed and had been paying tax in Naga Mahapalika. Therefore unless they get Rs. 8000/- per month in that regard from plaintiffs with interest, the mortgaged property cannot be redeemed. They further pleaded that period of mortgage had not expired, so the suit is premature. The suit as framed is defective and therefore it is liable to be dismissed. 6. Therefore unless they get Rs. 8000/- per month in that regard from plaintiffs with interest, the mortgaged property cannot be redeemed. They further pleaded that period of mortgage had not expired, so the suit is premature. The suit as framed is defective and therefore it is liable to be dismissed. 6. During pendency of proceedings of original suit the plaint was amended, then defendant no.-1 Heera Lal had filed additional written-statement in which he had denied the amended averments of plaint and further pleaded that house no. S-18/140 is personal property of defendants from time of their ancestors, and it has no concerned with house no. S-18/139 nor has any concerned with mortgage-deed. 7. After framing of issues, accepting evidences of the parties and affording the opportunity of hearing to them, the Court of Munsif, City, Varanasi had decreed the suit by its judgment dated 7.5.1992, by which mortgaged house no. S-18/140 was redeemed in accordance with terms of mortgage-deed. In this judgment, trial court had held that there is no dispute regarding identifiability of disputed property because only one property was mortgaged with its boundaries which was house no. S- 18/140, and erroneously it is mentioned as house no. S-18/139 in mortgage-deed in question. The trial court had passed decree of redemption of mortgage for same property which was mortgaged, whose description and boundaries was mentioned in mortgage-deed. The trial court had also given finding that although mortgage-deed was executed for disputed property for the period of 45 years but during period of mortgage, defendants have failed to perform their part of contract of mortgage, as they have raised unauthorized constructions without permission of the plaintiffs. They had tried to get mutated their names in municipal record as owner instead of mortgagee, and had also unauthorisedly usurped the neem tree present over disputed property without permission of plaintiffs. So due to breach of contract of mortgage, the plaintiffs had acquired legal rights to institute suit for redemption of mortgage. With these findings, trial court had decreed the suit for redemption of mortgage. 8. Aggrieved by the judgment of trial court, defendant no.-1 Heera Lal and her mother Smt. Sugna Devi (wife of Chhote Lal) had preferred Civil Appeal no. 98 of 1992. This appeal was heard and dismissed by the judgment dated 31.05.2004 of the Court of Additional District Judge/ Special Judge (E.C. Act), Varanasi. 8. Aggrieved by the judgment of trial court, defendant no.-1 Heera Lal and her mother Smt. Sugna Devi (wife of Chhote Lal) had preferred Civil Appeal no. 98 of 1992. This appeal was heard and dismissed by the judgment dated 31.05.2004 of the Court of Additional District Judge/ Special Judge (E.C. Act), Varanasi. In this judgment the first appellate court had also meticulously considered the facts, circumstances and arguments of the parties and gave finding of fact to the effect that there is no dispute of identifiability of disputed mortgaged property. After appreciating meticulously the oral and documentary evidences, lower appellate court had held that it was the house no. S-18/140 which was mortgaged in favour of defendants' predecessor Chhotey Lal, and this fact is proved from the description and boundaries given in mortgage-deed and also proved by other evidences. First appellate court had also considered the point of premature redemption and premature filing of original suit for redemption of mortgaged property and held that after the mortgage, defendants' name entered in municipal record as mortgagee in disputed property. But due to mala-fide, they had attempted to get their name entered over this property as owner so that they could illegally grab and usurp this property. First appellate court had also held that defendants attempted to get their name changed in municipal records from mortgagee to owner is breach of contract of mortgage for causing prejudice to the rights of plaintiffs, therefore the plaintiffs had legal right to institute suit for redemption of mortgage. This Court had also held that it is proved from evidence that there stood a neem tree in disputed property which was misappropriated by the defendants/appellants which amount of breach of contract of mortgage. First appellate court had also independently appreciated the evidences on every minute points and arguments placed before it, and gave its finding against appellants/defendants and in favour of plaintiffs/ respondents concluding its finding that disputed property is house no. S-18/140 which was erroneously mentioned as house no. S-18/139 in mortgage-deed, is liable to be redeemed in favour of plaintiffs and its identifiability is not disputed. S-18/140 which was erroneously mentioned as house no. S-18/139 in mortgage-deed, is liable to be redeemed in favour of plaintiffs and its identifiability is not disputed. First appellate court had also held that because of breach of contract of mortgage by raising unauthorized construction and misappropriating neem tree without permission of the plaintiffs in disputed mortgaged house and by attempting to change their status from mortgagor to owner; the defendants had violated the terms of contract of mortgage, so plaintiffs had legal right to institute suit for redemption of mortgage even before the completion of period of mortgage. Apart from it, it was found that during pendency of litigation that agreed period of 45 years of mortgage was also completed. With aforesaid findings, first appellate court had confirmed the judgment of trial court and decree passed in original suit no. 400 of 1979 for redemption of mortgage, and dismissed the first appeal. 9. Against the judgment of trial court as well as the first appellate court, present Second Appeal has been preferred by defendants of the original suit, who are in fact son, wife and daughters of original mortgagee Chhote Lal. 10. Learned counsel for the appellant contended that mortgage-deed was executed for 45 years, therefore the suit for its redemption could not be instituted before completion of period of 45 years, but original suit was filed in year 1979 which is before 6 years of completion of period of mortgage, and as such suit was not maintainable. He further submitted that mortgage-deed mentions the mortgaged property as house no. S-18/139 but judgment of redemption of mortgage was made for house no. S-18/140 which is erroneous. He further submitted that plaintiffs are owner of only half share of disputed mortgaged property because remaining share of disputed property is of share of defendant no.-2 Ganesh son of Mewa Lal who had not filed suit for redemption. Therefore whole of the mortgaged property cannot be redeemed and suit is liable to be dismissed. 11. The arguments of learned counsel for the appellants were refuted by counsel for the plaintiffs/respondents who submitted that disputed mortgaged property was in fact house no. S- 18/140, but inadvertently due to clerical error it was mentioned as house no. S-18/139, but this property can be properly identified by its boundaries. 11. The arguments of learned counsel for the appellants were refuted by counsel for the plaintiffs/respondents who submitted that disputed mortgaged property was in fact house no. S- 18/140, but inadvertently due to clerical error it was mentioned as house no. S-18/139, but this property can be properly identified by its boundaries. The redemption was sought for the property whose boundaries are mentioned in mortgage-deed decree was also passed for the same property, therefore there is no error in the impugned judgment. He further submitted that from evidences, it is proved that defendants are not owners of house no. S-18/140 and resides in mortgaged property, therefore the judgment of redemption of mortgaged property is not erroneous. He also contended that although mortgage-deed was executed for 45 years from year 1940 but defendants had started violating the terms of contract of mortgage by raising unauthorized constructions without permission of plaintiffs, by misappropriating and usurping neem tree without permission of plaintiffs/respondents, and by attempting to change their status from mortgagee to owner of disputed mortgaged property. Therefore for protecting their rights, plaintiffs had rightly instituted suit for redemption to mortgaged property for breach of contract of mortgage by defendants. The plaintiffs had right to file suit for redemption of mortgage as has been done in this matter and there is no illegality in it. He further contended that although, suit was filed by mortgagor Chhedil Lal and other legal heirs of mortgagors, except Ganesh, but it was also filed on behalf of defendant no.-2 Ganesh who was not available at the time of institution of suit, therefore he was impleaded as proforma defendant. Plaintiffs being co-mortgagors and co-owners of disputed property have legal rights and authority to file suit for the benefit on behalf of other co-mortgagors and co-owners, so there is no error in judgment of lower appellate court when whole of the mortgaged property was redeemed. With these arguments, learned counsel for the respondent contended that there appears no question of law or substantial question law in this matter relating to factual dispute for which concurrent finding of facts have arrived by the two lower courts Therefore, appeal should be dismissed. 12. One main point raised on behalf of appellant side was about the description of disputed property. Admittedly in mortgage-deed in question, in description of property house no. S-18/139 is written along with details of its boundaries. 12. One main point raised on behalf of appellant side was about the description of disputed property. Admittedly in mortgage-deed in question, in description of property house no. S-18/139 is written along with details of its boundaries. But the decree is passed for house number S-18/140. From evidences it has been proved that only one property was mortgaged the number of which is S-18/140 but inadvertently and due to clerical error its number has been written in mortgage-deed as house number S-18/139. But there is no difference in the details of boundaries of property for which decree for redemption of mortgage was passed. Appellant side had tried to plead that decree had been passed for different property, and that appellants are owner of house number S-18/140; but both these facts could not be proved by them. From evidences it has been proved that defendants-appellants reside in the same house which was mortgaged by mortgage-deed in question, and for that property the lower courts had passed decree in question by acceptable and apparently correct findings. There had been concurrent findings of the two lower courts based on proper appreciation of evidences, which are not infirm or erroneous. Apart from it the boundary of the property in question is the same as mentioned in mortgage-deed for which decree had been passed, so there is no likelihood of any prejudice being caused to them. The decree under challenge in this appeal was passed for the property admittedly mortgaged and none other property. Admittedly mortgaged property had to be redeemed, and decree had been passed for same property. There is no factual error in it. 13. Another main argument of learned counsel for the appellant was that no cause of action had arisen to plaintiffs-respondents for the suit and suit is premature, because the registered mortgage-deed in question dated 23.08.1940 was executed for a period of 45 years, but suit was instituted in year 1979. It was argued by appellants' side that suit for redemption of mortgage could have properly instituted after 23.08.1985, and not before it. This point had also been properly and meticulously considered by lower courts, and the reasons and findings was discussed in the judgments of trial court as well as first appellate court. It was argued by appellants' side that suit for redemption of mortgage could have properly instituted after 23.08.1985, and not before it. This point had also been properly and meticulously considered by lower courts, and the reasons and findings was discussed in the judgments of trial court as well as first appellate court. In normal course such suit would have been premature in year 1979, had there been the case that contract of mortgage was not violated by the def-appellants. But in present it had been proved from evidences that the appellants had been regularly violating the terms of contract of mortgage. In mortgage-deed it was written that appellants have been attempting to deprive the plaintiff-mortgagors of their legal right of this property as they had applied to get their names mutated over disputed mortgaged property and deleting the names of plaintiff-respondents in Nagar Mahapalika records. Plaintiff-mortgagors cannot be expected to remain silent witness of the attempt of defendants-appellants to remove the evidences of proof of their ownership, which would have caused serious prejudice to their rights. There is definite evidences that not only nature of property in question was changed by new constructions admittedly raised by defendant-appellants, but also that the tree present over this mortgage property was cut and utilised by them, and all these acts were done without consent of plaintiff-mortgagors, and even without notice to them. They had not been ready to give details of expenses of maintenance etc. as agreed between the parties in mortgage-deed. Even in their written-statement and additional written-statement filed in trial court the defendant-appellants had not pleaded that their constructions were within knowledge of mortgagors or they had given any account of constriction or alleged expenses to mortgagors. The details of such acts had been properly mentioned and discussed in judgments of trial court as well as of the first appellate court. These acts were in gross violation of terms of contract of mortgage before institution of the suit. If plaintiff-mortgagors would have waited as silent spectators of these acts, then it would have amounted to their consent of such acts against contract of mortgage, and also their acquiescence against their own legal rights. The plaintiff-mortgagors had filed original suit for redemption of mortgage immediately after cause of action arose when they came to know about the violation of terms of contract of mortgage by defendant-appellants. The plaintiff-mortgagors had filed original suit for redemption of mortgage immediately after cause of action arose when they came to know about the violation of terms of contract of mortgage by defendant-appellants. Therefore the suit of plaintiffs cannot be said to be premature when they filed suit for protecting their rights. 14. Apart from it,admittedly the registered mortgage-deed in question dated 23.08.1940 was executed for a period of 45 years, and defendants-appellants were legally obliged to vacate this property after completion of said period. During pendency of suit before trial court said period of 45 years had been completed in year 1985. In any case, after completion of period of mortgage the defendants-appellants had no right to retain the possession property in question. 15. The last argument on behalf of defendant-appellants was that plaintiffs are owner of only half share of disputed mortgaged property because remaining share of disputed property is of share of defendant no.-2 Ganesh son of Mewa Lal who had not filed suit for redemption,so whole of the mortgaged property cannot be redeemed. This is settled legal that plaintiff-mortgagors have filed suit for redemption of mortgage on behalf of all the mortgagors and their successor in interest. They had legal right to redeem mortgaged property for and on behalf of all the mortgagors. The other remaining mortgagor is also party to proceedings throughout who had been consenting by not challenging any such right of plaintiff-respondents. The defendant-appellants have no right to challenge the plaintiffs. This argument is found unacceptable. 16. It is pertinent to mention that this right of plaintiff-mortgagors was not challenged even in the written-statement or additional written-statement filed by defendant-appellants during trial. No such plea was raised during first appeal by the appellants, and this plea has suddenly been taken directly in second appeal before this court. Rule-2 of Order 41 CPC provides for the grounds which may be taken in appeal. It lays down that the appellant shall, not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Therefore for this reason also the new plea of the rights of plaintiff-mortgagors cannot be permitted to be taken directly in second appeal. It lays down that the appellant shall, not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Therefore for this reason also the new plea of the rights of plaintiff-mortgagors cannot be permitted to be taken directly in second appeal. In absence of such plea before first appellate court, appellant had no right to argue on this point even before first appellate court then permitting him on such point in second appeal directly for admission of appeal may cause prejudice to rights of respondents. 17. Admittedly property in question was mortgaged by plaintiff-mortgagors in favour of defendant-appellants. The only dispute in this matter related to right of plaintiff-mortgagors to get this property redeemed. It is not disputed that the plaintiff-mortgagors had right to get said mortgaged property redeemed. Period of mortgae had been completed it is also proved that even before completion of such period,the plaintiff-mortgagors had right to get said property redeemed because defendant-mortgagees had infringed the terms of contract of mortgage. The dispute between parties does not relate to any question of law. All dispute between the parties relate to questions of fact that could be decided on basis of evidences, as has been done by the lower courts. The findings of trial court as well as the first appellate court are based on the proper scrutinizing all the available evidences. Such concurrent findings are apparently correct and acceptable. These findings are not infirm or perverse, so they cannot be interfered in second appeal by re-appreciation of evidences. 18. This is a non-admitted appeal in which no substantial question of law arises. In this matter lower court records had been received and full length arguments had been placed by the parties, as discussed above. Even on merits of the case appeal is liable to be dismissed. 19. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court, are well reasoned, and are based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law, is involved in the case before this Court. No question of law, much less a substantial question of law, is involved in the case before this Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained. 20. In view of the above, this appeal is dismissed with costs. Appeal dismissed.