GOPIRAM KASHIRAM AND ANR. Vs. SHANKAR RAO AND ORS.
HIGH COURT OF MADHYA PRADESH
Gopiram Kashiram And Anr.
Shankar Rao And Ors.
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Abdul Hakim Khan, J. -
(1.)THIS is a second appeal against the judgment and decree dated 24th July 1947 passed by the learned District Judge, Gwalior in Appeal No. 26 of samvat 2003 confirming the judgment and decree of the trial Court, which dismissed the Plaintiff's suit.
(2.)THE facts of this case are that Defendant 3 (Khawaja Pazal Gani) mortgaged a house with possession to the Plaintiffs (Gopiram and Jagannath) on 12th July 1929, for a sum of Rs. 1500. The same day Plaintiffs executed a lease of the mortgaged property in favour of Defendant 3 for a monthly rent of Rs. 16 and thus Defendant 3 became a tenant of the Plaintiffs. Five years subsequent to this transaction, on 31st July 1934, Defendant 3 sold the house to Gheesalal, Defendant 3 and Major Shankarlal Pawar (Defendant 1). The sale -deed contains a recital of the previous mortgage and Defendant 3 also gave possession of the house, which he held as a tenant, to the purchasers (Defendants 1 and 3). After the purchase Gheesalal, Defendant 2 gave a notice to the Plaintiffs on 11th August 1984 asking them to take the mortgage money, but the Plaintiff did not acknowledge it.
On 8th April 1936 the Plaintiffs served a notice on Defendants 2 and 3, demanding rent at Rs. 15 a month and also the possession of the house. To this Defendant 2 replied that he had already given to Plaintiffs a notice to take the mortgage -money and hand over the mortgage -deed and that they were at liberty to come and take away the money. Furthermore, it was said in the reply that if the Plaintiff did not comply within a week, the Defendant shall deposit the sum in the Court and bring a suit for redemption. But the Plaintiff did not go to the Defendant to take the money, nor did Defendant 3, deposit the sum in its Court, nor did he file a suit of redemption.
(3.)THE Plaintiffs again served the Defendants with a notice on 20th December 1937, demanding rent and possession of the house and on 25th August 1938 brought this suit to obtain possession and mesne profits. Defendant 1 said that his name in the sale -deed, was merely in name and that Defendant 3 is the real purchaser.
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