1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1106 OF 2006 WITH CIVIL APPLICATION NO. 1921 OF 2006 IN SECOND APPEAL NO.1106 OF 2006 Suresh Bhupal Rajoba & Anr. .. Appellants V/s. Ramchandra Desharath Gavali .. Respondent Mr.T.S.Ingale for the Appellants/Applicants. Mr.Umesh Mankapure for the Respondents. CORAM : R.M.SAVANT, J. DATED : JULY 30TH, 2008. P.C. This Second Appeal arises out of the Judgment and Decree dated 25th September, 2006 passed by the learned Ad-Hoc Additional District 2 Judge, Sangli by which the Judgment and decree passed by the Trial Court dated 12th July, 2002 came to be confirmed. 2. The Appellants are the original Defendants in Regular Civil Suit No. 1060 of 2000 filed by the Respondent herein for redemption and possession of shop tenament situated at CTS No.187, Khanbhag. The said suit was filed on the ground that though the usufructory mortgage executed by and between the Plaintiff and the Defendants was for a period of five years, the Defendants had not handed over the possession on the efflux of the said period of five years in 1973 and had continued in possession illegally and therefore the said suit is filed by the Plaintiff for redemption of the mortgage and possession of the said shop premises and for mesne profits. 3. The Appellants herein who are Defendants 3 in the said suit by filing their written statement opposed the said suit and contended that the usufructory mortgage dated 28th September 1968 was a sham document and was created only to get over the provisions of the Bombay Rent Act under which the Defendants were protected. The Defendants therefore contended that the suit filed after a period of almost 22 years of the period of the mortgage coming to an end was not maintainable. 4. The parties went to Trial, the Trial Court on the basis of the material that was adduced before it by the parties came to a conclusion that the relationship between the Plaintiff and the Defendants for that of Mortgagor and Mortgagee. The Trial Court held that since the Plaintiff wanted to purchase agricultural land admeasuring 2 acres and since the Plaintiff was in need of money that the said mortgage was created. The Trial Court did not therefore accept the case of the 4 Plaintiff that the said document was a sham document. It is pertinent to note that in the Trial Court the Defendants did not produced the original of the Mortgage Deed and the Plaintiff by producing a certified copy of the Mortgage Deed and by leading evidence proved the said Mortgage Deed. The Trial Court also held that the entries in the Municipal record could not be called in aid by the Defendant in support of his case that he was the tenant in respect of the premises in question in the absence of any other cogent material like rent receipts etc. The Trial Court on the basis of the dictum that “Once a mortgage always a mortgage”, held that the relationship between the parties was that of Mortgagor and Mortgagee. The Trial Court therefore held that the Defendants were put in possession of the premises in question pursuant to the said Mortgage Deed. 5. Both the Courts below have concurrently held that the relationship of the parties was one 5 of Mortgagor and Mortgagee. Both the Courts below have rejected the case of the Defendants that the said mortgage document was a sham document and that since the Defendants were tenants, the same was executed to get over the provisions of the Bombay Rent Act. Both the Courts below have recorded findings of fact on the basis of the material that was on record. 6. In my view the challenge raised in the Second Appeal does not involve any substantial question of law. 7. The Second Appeal is, accordingly, dismissed. 7. In view of the dismissal of the Second Appeal, the Civil Application No. 1921 of 2006 does not survive and is disposed of as such. 6 [R.M.SAVANT, J.]