HIGH COURT OF RAJASTHAN
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(1.) THIS appeal arises from the appellate judgment and decree of the District Judge of Bharatpur, dated April 18, 1961.
(2.) THE controversy dates back to September 16, 1916 when Basudeo father of plaintiffs Narainlal and Kuhjilal, mortgaged a half portion of the suit house and a "nohra" situated in Deeg, to defendant Sheoprasad. While the half portion of the house war mortgaged for Rs. 200/-, the "nohra" was mortgaged for Rs 250/-, with interest, and thus the mortgage money was Rs. 450/ -. It was a mortgage with possession The deed of mortgage was registered on September 19, 1916. After badudeo's death, his two sons, the plaintiffs, instituted the present suit on August 30, 1954 for redemption of the half portion of the house. They pleaded that the mortgagee had realised so much money in the meantime, from the mortgaged property, that no part of it remained unpaid. It was therefore prayed that an account may be taken from the defendants and that if any amount was found payable by the plaintiffs, they would be willing to pay it for the redemption of the half portion of the house. Further, the plaintiffs pleaded that they and their father had been using the other half portion of the house, which had not been mortgaged to the defendant, and that it was in their possession But in spite of this defendant sheoprasad made a sale of the entire house in favour of defendant Satyendronath on April 19, 1954 and delivered its possession to him. The plaintiffs therefore pleaded that the sale was unauthorised and prayed that while possession of the mortgaged portion of the house may be given to them by redemption, possession of the remaining portion may be delivered to them because it had never been mortgaged to defendant Sheoprasad and he had no right to sell it to any one.
(3.) DEFENDANT Sheoprasad denied the allegations in the plaint, except that he admitted having sold the entire house to Satyendranath and to have delivered its possession to him. He stated in his additional pleas that the house had been mortgaged to him, with possession and that Basudeo's brother was a necessary party to the suit, A plea was also taken that the suit was barred by limitation The defendant gave the version that he had instituted a suit against Basudeo for the realisation of the mortgage money amounting to Rs. 688/8/- in 1922 and that it was decreed on November 8, 1922. Further, he stated that the whole of the house was sold in execution of the decree, along with the "nohra" because the decretal amount was Rs. 784 and that he (Sheoprasad) gave a bid at the auction sale and purchased the whole house while the "nohra" was purchased by another person. Thus it was pleaded that the mortgage had come to an end. Some other defences were also taken, but it is not necessary to refer to them because those matters did not arise for consideration in the District Court and have not been canvassed before me. Defendant Satyendranath pleaded that he had been living as a tenant in the disputed house for a long time and that no one else was in possession thereof at that time. He further pleaded that he had spent about Rs. 3000 in improving the house after its purchase and that the plaintiffs never raised an objection when he did so.;
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