- (1.) Present appeal has been filed by the defendants in a suit for redemption and recovery of actual physical possession of the mortgaged property being shop situated at Moti Bazar, Nimbahera Dist. Chittorgarh. The suit was decreed by the learned trial Court for redemption inasmuch as while deciding issue Nos. 1 and 4 the learned trial Court held that since the defendant did not have objection in redeeming the property, the plaintiff was held entitled to redemption, but the plaintiff was held to be not entitled to actual physical possession of the property. Against this decree the plaintiff filed appeal before the learned lower Appellate Court which has been allowed by impugned judgment and decree. The learned lower Appellate Court modified the finding of the learned trial Court on issue Nos. 1 and 4, and held that on payment of mortgage amount, consequent upon redemption, the plaintiff is also entitled to actual physical possession of the suit shop. The learned lower Appellate Court by deciding issue No. 2 against the defendant also held the plaintiff to be entitled to mesne profits at the rate of Rs. 2000/- per month from the date of the suit till the delivery of possession to the plaintiff.
(2.) Aggrieved of this judgment and decree the defendants have filed this appeal. The challenge to the impugned judgment in appeal is confined so far as it relates to the decree ordering delivery of actual physical possession of the suit shop to the defendant, so also to the award of mesne profits at the rate of Rs. 2000/- per month from the date of suit till the delivery of possession.
(3.) The facts necessary for appreciating the controversy raised and submissions made on the either side are as under :- According to the plaintiff the suit shop was mortgaged by way of usufructuary mortgage on 7-3-72 for a sum of Rs. 12,000/- by a registered mortgaged deed which was registered on 16-3-72. Thereafter in family partition the suit shop fell to the share of plaintiff No. 1, the plaintiff No. 1 borrowed further sum of Rs. 28,000/- and consequently on 30-3-83 a fresh mortgage deed was executed and registered, again being usufructuary mortgage for a period of nine years. According to the plaintiff, as per the terms of this mortgage deed the mortgagee was entitled to use the shop himself so also it could be used by his brothers and nephews, on payment of mortgage money the plaintiff was entitled to redeem and recover the actual physical possession of the shop. On 13-7-92 the plaintiff is alleged to have served a notice but of no avail. Hence the suit has been filed. In para 7 of the plaint the plaintiff also claimed mesne profits at the rate of Rs. 2000/- per month from the date of suit till possession.;