JAGDISH PRASAD SARAF Vs. KUSMI DEVI

JUDGEMENT

(1.) This appeal is directed against an ex parte judgment and decree dated 3-5-1978 passed by the 2nd Additional Subordinate Judge, Sitamarhi in Title Suit No. 39 of 1972/83 of 1975 under which he has dismissed the suit without cost.

(2.) The plaintiff-appellant had filed the suit for recovery of possession of the mortgaged land described at the foot of the plaint comprising of a house and agricultural land, and in the alternative for realisation of the mortgage money of Rs. 9000/- and rent with effect from 25-3-1969 to 29-2-1972 at the rate of Rs. 120/- per month and damages, total amounting to Rs. 14,995/- (including the mortgage money).

(3.) The case of the plaintiff appellant is that the defendant second set (respondent No. 2) Babulal Sah had taken loan, for the marriage of his daughter, from different sources. He had to repay the loans. So, he approached him and took a loan of Rs. 1860/- and executed a Rehan deed on 15-2-1963 in his favour. Subsequently, respondent No. 2 sold the mortgaged land to Most. Kusmi Devi, defendant No. 1 (respondent No. 1) and kept the mortgage money in deposit with her. Respondent No. 1, however, could not pay the mortgage money. Thereafter, defendant No. 1 (respondent No. 1)took Rs. 140/- from the plaintiff-appellant on one occasion, and Rs. 7000/- on another occasion, and executed a rehan deed dated 25-3-1968 for Rs. 9000/- in favour of the plaintiff-appellant and put him in possession of the mortgaged land and promised to pay the mortgage money in Baisakh 1377 Fasli. It is further said that after the delivery of the mortgaged property, respondent No. 1 took the house on rent from the appellant at the rate of Rs. 120/- per month.