ABDE ALI Vs. HAKUMUDDIN

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 18-4-2000 passed by adj, Indore in Civil Regular Appeal No. 14/99 whereby the judgment and decree dated 18-4-2000 passed by VI Civil Judge Class II, Indore in Civil Suit No. 366-A/96 was set aside, the present appeal has been filed which has been admitted for final hearing on 22-1-2001 on the following substantial question of law:-

(2.) SHORT facts of the case are that appellant filed a suit for redemption of mortgage and possession on 11-3-87 against the respondents alleging that suit property bearing House No. 20/4 situated at Ushaganj, Indore was of the ownership of Mulla Ibrahim Bhai, whose L. Rs. are respondent Nos. 6 and 7. It was alleged that suit property has been purchased by the appellant from Mulla ibrahim vide registered sale deed dated 16-10- 84. It was further alleged that appellant asked the respondent Nos. 1 to 5 to vacate the suit accommodation vide registered notice dated 14-8-86 and 19-9-86 on the basis of sale deed. It was alleged that notice were replied by respondent Nos. 1 to 5 on 25-8-86 and 29-9-86 wherein the ownership of the appellant was denied and it was alleged that possession was given as owner of Mulla Ibrahim, predecessor- in- title of respondent Nos. 6 and 7 to Mohd. Hussain, father of respondent Nos. 1 to 5. It was also alleged that only execution of sale deed was to take place. It was further alleged that appellant later- on came to know from Mulla Ibrahim, predecessor- in- title of respondent Nos. 6 and 7 who was also the brother of the appellant that suit property was mortgaged with the father of respondent Nos. 1 to 5 on 27-4-1976 for a consideration of Rs. 8,500/- and the possession was given to the father of respondent Nos. 1 to 5 on the condition that no interest shall be payable by the father of respondent Nos. 6 and 7 to the father of respondent nos. 1 to 5 on the mortgage money and no rent shall be payable by the father of the respondent Nos. 1 to 5 to the father of respondent Nos. 6 and 7. It was also alleged that as per the terms f the mortgage, the mortgage was required to be redeem on or before 30-7-1977. It was alleged that thereafter, Mulla Ibrahim, father of respondent Nos. 6 and 7 asked Mohd. Hussain, father of respondent nos. 1 to 5 to take back the mortgage money and hand over the possession of the suit house vide notice dated 8-4-77 which was replied by Mohd. Hussain on 23-4-77 and 26-4-77 wherein Mohd. Hussain admitted the mortgage and submitted that because of non-payment of mortgage money, the possession could not be handed over. Further case of the appellant was that vide dated 20-1 -1987, appellant asked redemption but the same was not replied by respondent nos. 1 to 5. On the basis of these allegations it was alleged that decree of redemption be passed in favour of appellant against the respondents after settlement of mortgage account and respondent Nos. 1 to 5 be directed to hand over the possession of the suit property.

(3.) THE written statement was filed by respondent Nos. 1 to 5 wherein it was alleged that Mohd. Hussain entered into an agreement to purchase the suit property from Mulla Ibrahim and possession was given to their father. Rest of the allegations were denied. It was also denied that the suit property was ever mortgaged. It was alleged that in fact possession was given by Mulla Ibrahim to the father of respondent Nos. 1 to 5, Mohd. Hussain as owner, hence it was prayed that the suit be dismissed.