- (1.) Smt. Chand Bai, widow of Pothulal, was the original owner of the suit property which is a three storied building situated at Sangipada, Sawai Madhopur in the State of Rajasthan. On the third floor of the house some rooms were constructed by the said Smt. Chand Bai. She mortgaged those rooms with possession to Sugan Chand for Rs. 3700/- vide the registered mortgage deed dated 17-2-1950. Thereafter Sugan Chand mortgaged the suit property with possession to Smt. Parsadi and Hanumandas on 28-7-1961 for Rs. 2400/- under a registered mortgaged deed. Said Smt. Parsadi and Hanumandas in turn mortgaged the suit property with possession to Natthulal, the respondent No. 1 herein. Nathulal is in possession of the suit property.
(2.) When the respondent No. 1 started demolishing a portion of the suit property, Smt. Chand Bai filed a Civil Suit No. 69/70 (4/76) in the Court of the Munsif, Sawai Madhopur for mandatory injunction, for declaration of easementary rights, etc. The suit was decreed and the appeal filed by the respondent No. 1 was dismissed. The Second Appeal No. 168/91 filed by him is pending in the High Court. During the pendency of the suit, Smt. Chand Bai executed a gift deed on 29-1-1971 in favour of Surendra Kumar, appellant herein. Thereafter the appellant filed a Civil Suit No. 140/73/111/74 for redemption of the mortgage. Smt. Parsadi, Hanuman Dass, Nathu Lal, Sugan Chand and Smt. Chand Bai were impleaded as Defendant Nos. 1 to 5 respectively in the said suit. It is relevant to state here that in the suit, Nathu Lal was the main contesting defendant. Smt. Parsadi and Hanuman Dass, defendants 1 and 2 had entered into a compromise with the plaintiff. Sugan Chand and Smt. Chand Bai, defendants 4 and 5 filed written statement supporting the case of the plaintiff.
(3.) The trial Court, on perusal of the pleadings of the parties, framed ten issues of which issue Nos. 2, 7 and 9 are relevant for the purpose of the present proceeding. The said issues are to the effect that : "2. Whether the plaintiff has got the right to file the suit 7. Whether the gift-deed is collusive 9. Whether the plaintiff is entitled to get the possession of the house in dispute - The trial Court answered all these issues in favour of the plaintiff and decreed the suit vide its judgment dated 15th March, 1978. The operative portion of the judgment reads : "1. Upon the plaintiff paying to the defendant No. 3 Rs. 2612.25 (Rs. 2400/- mortgage amount and Rs. 212.25 as expenses for repairs etc.) the plaintiff shall have the right to get the property in dispute redeemed and the plaintiff shall be entitled to get the possession of the disputed property. The plaintiff shall deposit the said amount in the Court on 30-3-78 and on the same day the defendant Nathu Lal shall produce the documents regarding the mortgage in the Court. 2. The plaintiff shall also pay Rs. 1300/- to Shri Sugan Chand, defendant No. 4." The appeal, Civil Appeal No. 11/78/75/86 filed by the respondent No. 1 challenging the judgment/decree of the trial Court was allowed by the District Judge, Sawai Madhopur and the suit was dismissed vide the judgment dated 11th October, 1989.;