N.K.Mehrotra, J. - (1.) This is second appeal under Section 100 of the Code of Civil Procedure against the judgment and order dated 16.1.1981 passed by the IVth Additional District Judge, Hardoi in Civil Appeal No. 178 of 1979 arising out in Regular Suit No, 46 of 1979 decided by the Munsif West, Hardoi by the judgment and order dated 7.9.1979.
(2.) I have heard Shri Anurag Narain, the learned counsel for the appellants and Shri Mohd. Arif Khan, the learned counsel for the respondents on the substantial questions of law formulated in the memo of the appeal.
(3.) It appears that plaintiff-respondents filed a suit for redemption of the mortgaged property alongwith possession of the same on receiving an amount of Rs. 4,000. The case of the plaintiff is that one Roop Narain Kapoor was owner of the shop detailed in the plaint. He mortgaged this shop with a conditional sale on 13.12.1950 with Ram Bharosey Lal for a sum of Rs. 4,000 and the mortgagor was allowed to remain in possession of the shop and to pay rent in lieu of interest. It was further agreed that in case the mortgagor pays back the amount of Rs. 4,000 within a period of five years, the mortgagee would return the shop to him. Roop Narain Kapoor died in the year 1957. The plaintiff Nos. 1 to 7 are his legal representatives. The mortgagee Ram Bharosey Lal also died in the year 1954 and his elder brother Sita Ram became his heir and mortgagee of the shop. Sita Ram filed Civil Suit No. 585 of 1954 (referred to as Suit No. 285 of 1954 in the judgment of the learned Munsif) against Roop Narain Kapoor and one Thakur Mahesh Singh for recovery of arrears of rent. In this suit a specific plea was raised by Sita Ram that the deed dated 13.12.1950 effected an outright sale while it was pleaded by Roop Narain Kapoor that it was a mortgage by conditional sale. It was held in that suit that it was a mortgage by a conditional sale and that the finding operates res judicata between the parties. On 26.8.1950 Roop Narain Kapoor delivered the possession of the disputed shop to Smt. Sunder Devi widow of Sita Ram and an agreement was also executed whereby she was authorized to realise the rent from the sitting tenant. After the death of Roop Narain Kapoor, Smt. Sunder Devi on 8.4.1958 transferred this property in favour of one Smt. Siddha Devi for a sum of Rs. 4,000. It is on 8.10.1978 that the defendant No. 2 ejected the sitting tenant Dr. Bishun Shanker Goel. The plaintiff inspected the papers in the Registration Department and came to know that the sale deed dated 8.4.1958 had been executed by Smt. Sunder Devi in favour of Smt. Siddha Devi whose heir is the defendant No. 2. Smt. Siddha Devi has also died in the year 1961, The plaintiffs are entitled to redeem the property on payment of Rs. 4,000. The defendant refused to redeem the said property. With these allegations the plaintiffs filed the suit for redemption of the mortgage of the disputed shop.;