- (1.) CHOPRA, J. - This second appeal is directed against the appellate judgement of the learned Civil Judge, Chittorgarh dated 26. 9. 1978 whereby he has upheld the judgement of the learned Munsif, Nimbaheda dated 13. 9. 1974 dismissing the suit for possession of the mortgage land filed by the plaintiff-appellant.
(2.) IN this case, a suit was brought by Samastha Panch, Jain Swetamber Sthanakwasi (Bais Sampradaya ) Bhadsoda in representative capacity through Shri Mohanlal Jain and Shri Bhanwarlal Jain residents of Bhadsoda against defendant Motilal Son of Hemraj Sewak pleading interalia that a house with Guwadi situated in village Bhadsoda, the boundaries of which have been given in para No. 2. of the plaint belonged to one Devilal Gokhru, who died in Smt. 2017. This house was mortgaged with defendant Hemraj and his sons Motilal and Udailal. On the death of Devilal, his sons Mangilal, Ratanlal and Bhanwarlal became the owners of this property and the equity of redemption came to rest in them. They gifted this property to the plaintiff on Chet Sudi 13, Samvat 2013. It is alleged that on 15. 2. 1967, on behalf of the plaintiff, one Shri Nanalal Lodha paid a sum of Rs. 1051/- to the defendant and after recording the receipt of this amount in the Bahi of plaintiff Samaj, the defendant agreed to keep this house in his possession for two years and thereafter, he agreed to vacate it. However, a registered gift deed was executed in favour of the plaintiff Samaj by Mangilal, Ratanlal and Bhanwarlal, sons of Shri Devilal Gokhru on Jeth Badi 11, Samvat 2028 i. e. on 20. 5. 1971. It is alleged that Mangilal, Ratanlal and Bhanwarlal omitted to mention the factum of mortgage and, therefore, one more gift deed was executed on 28. 1. 1972, in which the factum of mortgage was also mentioned. According to the plaintiff, the defendant is a licence of this house since 15. 2. 1967 and that licence came to an end on 15. 2. 1969 and, therefore, the plaintiff is entitled to the possession of this house alongwith mesne profit @ Rs. 10/- per month. In this case, the suit was filed on 3. 4. 1972. A written statement was filed on behalf of the defendant on 29. 7. 1972. According to the defendant, Shri Devilal Gokhru mortgaged this house with him on Chet Sudi 9 Samvat 1983 for a sum of Rs. 335/- and possession of the suit house was given to him. Therefore, it is alleged that a sum of Rs. 101/- were paid to Shri Devilal and, therefore, he executed a sale deed in favour of the defendant and his sons. It was submitted that from Chet Sudi 9 Samvat 1983, the defendant and his sons are living in this house as owners. According to the defendant, when this house did not belong to Mangilal, Ratanlal and Bhanwarlal, they could not have executed any gift deed in favour of the defendant either on Chet Sudi 13, Samvat 2013 or on 28. 1. 1972. The alleged amount of Rs. 1051/- was never paid to him and when possession of the suit house was never handed over to the plaintiff and the defendant was living in it as owner of this house, his rights are not affected by any gift deed by the heirs of late Devilal Gokhru. It is alleged that Devilal himself filed a suit for redemption of the mortgage, which was registered as Civil Original Suit No. 103 Samvat 2002 in the Court of Munsif Bhinder and in that suit, on behalf of the defendant, a plea was taken that he is the owner of this house. That suit was dismissed as withdrawn on 17. 6. 1947 and, therefore, defendant Hemraj and his sons Motilal and Udailal are using this house as owners and so, their adverse possession has ripened on this house. According to the defendant Motilal, his brother Udailal is a co-mortgagee in this house and, therefore, without impleading him as a party to this suit, this suit cannot proceed. According to the defendant, the sale deed dated 15. 2. 1967 was got executed from them by using coercion and undue influence i. e. that they will be ostracized and nobody will participate in the funeral of their father. It was submitted that in the mortgage deed, the right to redeem has been granted in the mortgagor after 51 years and, therefore, upto 31. 12. 1970, the suit for redemption could not have been brought. The equity of redemption was only kept for 51 years and, therefore, the suit cannot be brought after 31. 12. 1970 because right to redeem the mortgage has been extinguished as the earlier suit was got dismissed without any liberty to file a fresh one and, therefore, this suit is barred by resjudicata under 0. 23 r. l C. P. C. and if the limitation of 51 years is allowed to stand then that period is not yet over and, therefore, the suit is pre-mature. On the basis of these pleadings of the parties, in all 11 issues were framed. The learned Munsif treated this suit as a dual suit i. e. suit for redemption as also suit for possession and treating it a suit for redemption, he proceeded to decide issues No. 6 and 8 ahead of all other issues.
(3.) ISSUE No. 6 related to the applicability of the principle of res-judicata and issue No. 8 related to the plea whether Udailal, brother of defendant Motilal who is a co-mortgagee in the suit house is a necessary party and without impleading him, the suit cannot proceed? ISSUEs No. 6 and 8 were decided against the plaintiff and in favour of the defendant. 'while deciding issue to 5, the learned Munsif held that it has not been proved by the defendant that the suit house has been sold to them by Devilal and, therefore, they are only mortgagees in possession of the house. ISSUE No. 7, which related to adverse possession was also decided against the defendant. As regards issues NO. 1,2 and 9, it was held that the defendant has not been paid a sum of Rs. 1051/- and, therefore, Ex. 1 has not been acted upon. Moreover, it has been held that this document Ex. 1 was got executed by Motilal by using coercion and undue influence and, therefore, such an agreement is unenforceable. As regards ISSUEs No. 3 and 4, it has been held that although, the equity of redemption can be transferred through the gift deed but keeping in view the decisions of ISSUEs No. 1,2,5,6,7,8 and 9, the plaintiff cannot get possession of the suit house and, therefore, the suit was dismissed. On appeal, the learned Civil Judge has held that although, the agreement Ex. 1 has been executed by defendant in favour of the plaintiff but the amount mentioned in Ex. 1 i. e. Rs. 1051/- has not been paid to the defendant by the plaintiff and, therefore, while holding the execution of the document Ex. 1 as proved, he has held that issue No. 2 has rightly been decided in favour of the defendant and against the plaintiff. The decision of the learned trial court as regards issue No. 5 which related to the sale of the house in favour of the defendant by Devilal Gokhru has been upheld. The findings of the learned trial court on issues No. 5,6,7,8 and 9 have also been upheld. While deciding issue No. 9, it has been held that the suit is within limitation because the execution of the agreement has been proved. However, while deciding issue No. 4, the learned Civil Judge has also held that the plaintiff is not entitled to redeem the suit house from mortgage. The learned Civil Judge has dismissed the appeal vide his judgement dated 29. 6. 1978. Hence this second appeal under s. 100 C. P. C. I have heard Mr. Suresh Shreemali, the learned counsel appearing for the plaintiff-appellant and Mr. S. R. Bhandari, the learned counsel for defendant-respondent and have also carefully gone through the record of the case. ;