- (1.) THIS is an appeal against the judgment and decree passed by the Civil Judge, Ballia, against the judgment and decree passed by the Mun-sif, Ballia. The Munsif had decreed the suit for redemption of the mortgage on payment of Rs. 2, 000. The lower appel late court came to the conclusion that plaintiffs were entitled to certain amount by way of damages and, therefore, they were entitled to redeem the mortgage on payment of Rs. 377 only. It is against this judgment and decree that the defendant has filed this appeal.
(2.) THE facts giving rise to this appeal are as follows : On 30-1-1923 a mortgage was execut ed by Prahlad Hajjam in favour of Bal-deo Singh and Ram Govind. On 8-6-1954 the mortgagors sold the property to the plaintiffs. On 4-ld-1962 the vendees brought a suit that the mortgagees had dug pits in the disputed land making the land unfit for agriculture and, therefore, they were liable to pay Rs. 1, 500 as damages. They also alleged that they had paid Rs. 80 as rent and Rs. 43 was claim ed as interest. Thus the plaintiffs claimed that they were entitled to Rs. 1, 623 out of the mortgaged money and the mort gage be redeemed on payment of the balance. The suit was contested by the defendant-appellant who alleged that he did not dig any pits in the land in suit; that the suit was barred by time and that the plaintiffs were not entitled to the reliefs claimed.
(3.) THERE is a finding of fact based on the evidence on record that the mort gagees had dug a pit 15 or 16 years back. This finding was not assailed in this se cond appeal. All that was argued was that according to Articles 32 and 41 of the old Limitation Act, the mortgagor could claim damages for this act of the mortgagee within two years or three years and as no such damages were claimed within the aforesaid period, the suit for damages was barred by time.;