Pramod Kumar Srivastava, J. - (1.) Heard learned counsel for the parties on admission of second appeal and perused the records of the lower courts.
(2.) It has been admitted fact between the parties that original owner of disputed property were Prabhu and his two sons Chhedi Lal and Mewa Lal, who had mortgaged this property to Chhote Lal for 45 years. Admittedly possession of this mortgaged property of house no. S-18/139 was handed over to mortgagee Chhote Lal, and the boundaries of this property was mentioned in registered mortgage-deed dated 23.08.1940. Admittedly Mewa Lal and his wife had died, who were survived by son Ganesh (defendant no.-2); and Prabhu had also died. Mortgagor Chhedi Lal (plaintiff no.-1) and his sons Basant Lal (plaintiff no.-2) and Babu Lal (plaintiff no.-3) had filed original suit no. 400/1979 (Chhedi Lal & others v. Heera Lal and others) for redemption of aforesaid mortgaged property on 11.7.1979 in which seven defendants were wife, sons and daughters of late mortgagee Chhote Lal. The original suit was filed with the averment that registered mortgage-deed dated 23.8.1940 was executed by Prabhu, Chhedi and Mewa Lal to Chhote Lal for 45 years with condition that during this period of mortgage, the mortgagee will use the property the way he likes but he will have to take care of said property by maintenance and shall pay the taxes and furnish the details of expenses and can perform maintenance only after permission of mortgagors. But when the plaintiffs had given notice to defendants, then said notice was replied by defendants, from which it appeared that defendants have raised unauthorized constructions over mortgaged property without consent of the mortgagors and are not ready to perform their part of contract of mortgage. Since original mortgagee Chhote Lal had died and his legal representatives (defendants) are not discharging their duty under contract of mortgage, therefore plaintiffs are filing suit for redemption of mortgage. Original suit was filed by mortgagor Chhedi Lal and his two sons. Since other two mortgagors Prabhu and Mewa lal had also died and defendant no.-2 Ganesh is only other legal heir of Mewa Lal, and who is not available at the time of institution of suit, therefore suit is also filed on behalf of defendant no.-2 Ganesh (legal representative of deceased mortgagors) impleading him as proforma defendant in the suit. The only relief sought in the plaint was for redemption of aforesaid mortgaged property.
(3.) Initially in the plaint disputed property was mentioned as house no. S-18/140 Raja Bazar, Varanasi whereas mortgage-deed was executed for house no. S-18/139 Raja Bazar, Varanasi. But during pendency of the suit, amendment was incorporated to the effect that detail of mortgaged property was erroneously written due to clerical error, as disputed property is house no. S-18/139 but boundaries and location of plot no.-139 and plot no.-140 are the same. It was also mentioned in the amended plaint that defendants have tried to get their name mutated in Nagar Mahapalika records as owner of disputed property, without knowledge or information to plaintiffs, therefore they cannot get benefit of any such mutation. The disputed mortgaged property is the same at present as it was at the time of execution of mortgage-deed.;