- (1.) This second appeal has been filed by defendant-appellant against judgment and decree dated 31.08.1991 passed by Additional District Judge No.1, Bharatpur, whereby he dismissed the appeal filed by defendant-appellant and confirmed the judgment and decree dated 25.07.1989 passed by learned Munsiff Magistrate No.2, Bharatpur.
(2.) Plaintiff-respondent Kinna filed a suit for redemption of mortgage of 'Birat' which is a right of scavenging in the area situated in Mohalla Jatavan, Village Kumher, District Bharatpur. The suit was filed on 21.08.1984 alleging therein that Ramhet, plaintiff's grandfather, was having two brothers, namely, Ghure and Lohre. Ghure was having a son; Chalana and Lohre was having two sons, namely, Shivli and Kishore. All the three, Chalana, Shivli and Ghure expired leaving no legal representatives behind them and their rights of scavenging were succeeded by legal representatives Kalua @ Bihari. Sons of Kalua are plaintiff Kinna and defendants no.2 and 3 and one Shri Sumran, who has since died and his legal representatives were brought on record as defendants no.4 to 10 and arrayed as Proforma respondents herein. Plaintiff mortgaged his aforesaid right of Birat to defendant-appellant for Rs.800/- in Samvat Year 2015. As per customs prevalent in the 'Harijans' no interest is payable on the amount of which the Birat is used to be mortgaged. The mortgagee is allowed to earn money out of such mortgaged Birat till redemption takes place and that such mortgage can be redeemed at any time. Plaintiff wanted to redeem the mortgage by making payment of Rs.800/- to defendant-appellant but he did not give back the Birat after taking the money. An application was made to Gram Panchayat by the plaintiff with the aforesaid allegations.
(3.) Defendant-appellant contested the suit by filing written statement. Learned trial court decreed the suit against which defendant-appellant filed first appeal, which too was dismissed. Hence, this second appeal.;