MODI, J. - (1.) THIS is a second appeal by the defendant Poonam Chand in a suit for redemption of a mortgage.
(2.) THE plaintiff Nathmal mortgaged the suit house to one Jethu for Rs. 40/- by an unregistered mortgage-deed dated 7th September, 1907. THEre was a decree against Jethu and in execution thereof the suit house was sold to one Bhopia. Bhopia in turn sold it to Chhagniram, and the present appellant Poonam Chand is one of the sons of Chhagniram. THE plaintiff impleaded Jethu and his sons and Bhopia and Poonam Chand, Chhagniram and Babulal (the latter three being the sons of Chhagniram) as defendants. Chhagniram and Babulal allowed the suit to proceed ex parte against them, and Poonam Chand alone contested the suit. THE defence was that there was no mortgage by Nathmal at all, that the defendant was a bonafide purchaser for value, that the suit was barred by limitation, that the plaintiff was estopped from bringing the present suit as he was aware of the intermediate transactions through which the property had passed, and finally that the defendant was entitled, in any case, to the sale price paid by him to Bhopia and the costs of improvements. THE Civil Judge Pali held that the mortgage was proved and that the defendant had made improvements to the tune of Rs. 1300/- and was entitled to them, and dismissed all the other pleas raised by the defendant. THE learned District Judge on appeal upheld the judgment and decree of the trial court. Hence the present appeal. It may be stated at the very outset that the question of the factum of mortgage is a question fact, and both lower courts have held it proved. This finding on this Court in second appeal and cannot be allowed to be questioned. The same position holds good with regard to the costs of improvements claimed by the defendant-appellant. The Courts below have allowed him a sum of 1300/- and have disallowed the further sum of Rs. 1200/-claimed by him. It has not been shown to me how the finding of Courts below is incorrect on, what is again, a question of fact, and therefore I am not prepared to allow him to raise this point also. The only other point raised before me was that the plaintiff's suit was not maintainable. Learned counsel put his argument in this way. According to him there was a condition in the deed of mortgage that the mortgagor will not be allowed to redeem the mortgaged property before fifty years from the date of the mortgage. The dead, however, further contained a condition that if the mortgagor desired redemption earlier, then, he will have to pay double the amount of the mortgage money. The contention of learned counsel is that the plaintiff can only bring his suit after the expiration of the period of fifty years from the date of the mortgage viz. , 7th September, 1907 and as he had brought his suit some time in 1946, it was not maintainable. He further argued that as there was no complete embargo put on the filing of the suit before the said period of fifty years, the plaintiff, according to the terms of the deed executed by him could only ask for redemption on paying double the amount of the mortgage money. It must be pointed out, however, that whatever, merit there might have been as to this point if it had been raised at the proper time, the defendant did not raise it in his written statement not was any issue framed on it. It has been brought to my notice that an application was made on behalf of the defendant before the lower appellate court to raise this point; and he was allowed to raise it on certain terms, which however, he failed to comply with. It seems to me quite clear that this point was never raised before the court below during the course of arguments and no reference whatsoever has been made thereto by the lower court in its judgment under appeal. In these circumstances, I am of opinion that the defendant appellant must be deemed to have abandoned this point himself, and that he cannot be allowed to urge it at this stage. The result is that this appeal fails and is hereby dismissed with costs. .;