1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 77 OF 2008 WITH CIVIL APPLICATION NO. 207 OF 2008 Kishor Kashinath Shilkar .. Appellant Vs. Motiram Nathu Shilkar .. Respondent Mr. Sandesh D. Patil for the appellant. CORAM : J.H.BHATIA,J. DATE : 6th October, 2009. P.C. 01. Admitted facts are that the plaintiff-respondent Motiram and the defendant-appellant Kishor are cousins. They have some land as ancestral property. The defendant developed that land and made construction. Admittedly, in the building to be constructed by the defendant, the plaintiff was to get one flat. The plaintiff filed Special Civil Suit No. 299 of 1998 in the Court of Civil Judge Senior Division, Thane for possession of the suit flat which was allotted to him. The defendant pleaded that, the plaintiff had taken loan of Rs.1,08,000/- from him and had mortgaged the suit block to him. He also contended the right of the plaintiff to possession of the suit block was extinguished as he has not filed any suit for redemption of the mortgage. The Trial Court rejected all the contentions of the defendant and decreed the 2 suit. The defendant preferred Regular Civil Appeal No. 104 of 2004. The appeal was also dismissed. Hence, the Second Appeal by the original defendant. 02. The impugned judgments of the Courts below revealed that, even though the defendant claimed that the property was mortgaged to him by the plaintiff, he did not produce any mortgage deed. He only produced one chit (Exhibit 42) which was allegedly signed by the plaintiff. According to him, the said chit made reference to the mortgage deed. According to him, mortgage deed was stolen away by the plaintiff and therefore, he was not in a position to produce the same. It is conceded that, mortgage deed was not registered document. No witness has examined to prove the loan of Rs. 1,08,000/- or mortgage of suit property by the plaintiff in favour of the defendant. The plaintiff denied his signature on the chit (Exhibit 42). The witnesses on that document were not examined nor that document was referred to the handwriting expert to prove the signature of the plaintiff on that document. The Trial Court compared that signature with the signature of the plaintiff on Exhibit 25, under which he was to get the suit flat and came to conclusion that, both the signatures are of the same person. The Appellate Court did not agree with the Trial Court in respect of comparison of signatures of the plaintiff. Anyhow, both the Courts below did not believe that the property was mortgaged by the plaintiff by obtaining loan of Rs.1,08,000/- from the defendant. 3 In absence of any documentary or oral evidence, in respect of mortgage, it is difficult to hold that the concurrent finding of both the Courts below was either perverse or per se wrong. In any case, no question of law is involved in the Second Appeal. 03. Therefore, the Second Appeal stands dismissed. 04. As the Second Appeal itself is dismissed, the Civil Application for stay does not survive and stands disposed of. (J.H.BHATIA,J.)