SAMASTH PANCH JAIN SWETAMBAR STHANAKWASI BAIS SAMPRADAYA BHADSODAS REPRESENTATIVES MOHANLAL AND BHANWARLAL R/O BHANDSODA DISTRICT CHITTORGARH Vs. SHRI MOTILAL

JUDGEMENT

(1.) CHOPRA, J. - This second appeal is directed against the appellate judgement of the learned Civil Judge, Chittorgarh dated 26. 9. 1978 whereby he has upheld the judgement of the learned Munsif, Nimbaheda dated 13. 9. 1974 dismissing the suit for possession of the mortgage land filed by the plaintiff-appellant.

(2.) IN this case, a suit was brought by Samastha Panch, Jain Swetamber Sthanakwasi (Bais Sampradaya ) Bhadsoda in representative capacity through Shri Mohanlal Jain and Shri Bhanwarlal Jain residents of Bhadsoda against defendant Motilal Son of Hemraj Sewak pleading interalia that a house with Guwadi situated in village Bhadsoda, the boundaries of which have been given in para No. 2. of the plaint belonged to one Devilal Gokhru, who died in Smt. 2017. This house was mortgaged with defendant Hemraj and his sons Motilal and Udailal. On the death of Devilal, his sons Mangilal, Ratanlal and Bhanwarlal became the owners of this property and the equity of redemption came to rest in them. They gifted this property to the plaintiff on Chet Sudi 13, Samvat 2013. It is alleged that on 15. 2. 1967, on behalf of the plaintiff, one Shri Nanalal Lodha paid a sum of Rs. 1051/- to the defendant and after recording the receipt of this amount in the Bahi of plaintiff Samaj, the defendant agreed to keep this house in his possession for two years and thereafter, he agreed to vacate it. However, a registered gift deed was executed in favour of the plaintiff Samaj by Mangilal, Ratanlal and Bhanwarlal, sons of Shri Devilal Gokhru on Jeth Badi 11, Samvat 2028 i. e. on 20. 5. 1971. It is alleged that Mangilal, Ratanlal and Bhanwarlal omitted to mention the factum of mortgage and, therefore, one more gift deed was executed on 28. 1. 1972, in which the factum of mortgage was also mentioned.

(3.) ISSUE No. 6 related to the applicability of the principle of res-judicata and issue No. 8 related to the plea whether Udailal, brother of defendant Motilal who is a co-mortgagee in the suit house is a necessary party and without impleading him, the suit cannot proceed? ISSUEs No. 6 and 8 were decided against the plaintiff and in favour of the defendant. 'while deciding issue to 5, the learned Munsif held that it has not been proved by the defendant that the suit house has been sold to them by Devilal and, therefore, they are only mortgagees in possession of the house. ISSUE No. 7, which related to adverse possession was also decided against the defendant. As regards issues NO. 1,2 and 9, it was held that the defendant has not been paid a sum of Rs. 1051/- and, therefore, Ex. 1 has not been acted upon. Moreover, it has been held that this document Ex. 1 was got executed by Motilal by using coercion and undue influence and, therefore, such an agreement is unenforceable. As regards ISSUEs No. 3 and 4, it has been held that although, the equity of redemption can be transferred through the gift deed but keeping in view the decisions of ISSUEs No. 1,2,5,6,7,8 and 9, the plaintiff cannot get possession of the suit house and, therefore, the suit was dismissed.