B.R. Arora, J. - (1.) This appeal and two cross objections filed on behalf of the plaintiff-respondents and the respondents No. 9/1 are directed against the decree and judgment dated July 5, 1976 passed by the District Judge, Udaipur, by which the learned District Judge partly allowed the appeal filed by Balu Lal and Smt. Sajjan Bai.
(2.) Plaintiffs Balu Lal and Smt. Sajjan Bai filed a suit in the Court of the, Civil Judge, Udaipur, for partition and possession with respect to the properties of deceased Champa Lal mentioned in Schedule 'Kha' appended with the plaint. The plaintiffs' case as unfolded in the plaint is that six properties mentioned in the Schedule 'A' of the plaint, belong to one Champa Lal who died issueless in Samavat year 1975. He was survived by his widow Smt. Anop Bai, who also breathed her last in Samavat year 1979, leaving behind six co-lateral heirs of deceased Champa Lal namely Gordhan S/o Ragunath, Laxmi Chand S/o Sohan Raj, Khem Raj S/o Uttam Chand, Paras Ram S/o Prem Chand, Kalu Ram S/o Bholi Ram and Magan Lal S/o Bhohali Ram. The pedigree table was given in Schedule 'K' appended to the plaint. These six co-lateral heirs of deceased Champa Lal, also died. Plaintiff No. 1 Balu Lal and the defendant Laxmi Chand, Madan Lal, Sohan Lal and Smt Babu Bai are successors in interest of Laxmi Chand. Plaintiff No. 2 Smt. Sajjan Bai is the successor in interest of Gordhan Lal. Defendant Jamna Bai and Smt. Chosar Bai are the successors in interest of Khem Raj while defendant Ganesh Lal succeeded to Paras Ram. Defendants Madan Lal, Kanhaiya Lal and Harak Lal succeeded the interest of Kalu Ram while defendant Smt. Raj Kunwar Bai is the successor of Magan Lal. Property No. 1 and part of the property No. 2 met in Schedule 'Kha' were in the possessory mortgage with Laxmi Lal and Bhura Lal. Defendants Ganesh Lal, Mohal Lal, Harak Lal and Kanhaiya Lal, got those properties redeemed by paying the mortgage-money to the successors in interest of the mortgage of Laxmi Lal Chatur Lal and Bhura Lal Bhatta. Part of the property No. 2 was in possession of the mortgage of Laxmi Lal Pancholi and defendant Nos. 12 and 13 namely Keshar Singh and Brij Behari Singh and they are in possession of the said property as the heirs of Laxmi Lal Pancholi. Property No. 3 is in possession of the plaintiffs Balu Lal and Smt. Sajjan Bai. Property No. 4 is in the joint possession of plaintiffs and defendants Madan Lal and Smt. Bapu Bai. Property No. 5 a vacant plot of land is in possession of the defendant No. 1 Ganesh Lal and he constructed a house over the plot about 5 to 6 years before filing of the suit. Property No. 6 is a Chowk between the deceased Champa Lal and defendants Kanhaiya Lal, Madan Lal and Babu Bai. The plaintiffs gave several notices to the defendants to partition the properties in question, but they did not give any reply to the plaintiffs and, therefore, this suit for partition and possession was filed and the plaintiff No. 1 Balu Lal claimed 1/16 share in all the suit properties while the plaintiff No. 2 Smt. Sajjan Bai claimed 1/2 share in the properties. The plaintiffs, therefore, claimed partition and possession of their respective separate shares. Defendants Laxmi Lal, Madan Lal, Bapu Bai, Jamna Bai and Smt. Chaser Bai filed a joint written statement substantially admitting the claim of the plaintiffs. Defendant Nos. 1 to 4 viz., Ganesh Lal, Mohal Lal, Harak Lal and Kanhaiya Lal contested the suit and filed a joint written statement, is that the pedigree table filed by the plaintiffs is not correct and property No. 5 did not belong to Champa Lal but it belongs to the defendant Ganesh Lal, Smt. Anop Bai, (Widow of Champa Lal), survived by Paras Ram, Kalu Lal, Khem Chand and Madan Lal and these persons are her sole heirs and Laxmi Chand and Gordhan Lal were not her heirs. Laxmi Chand died in the life-time of Smt. Anop Bai and therefore he cannot be her heir. Smt. Sajjan Bai plaintiff No. 2 was not the heir of Gordhari Lal and plaintiff No. 1 Balu Lal and defendants Laxmi Chand, Madan Lal, Sohan Lal and Bapu Bai were not the successors in interest to Laxmi Chand. The defendants Jamna Bai and Chosar Bai were the daughters of Hem Raj and being the daughters, they were not his successors in interest as they were excluded from succession by local customs. Khem Raj was succeeded by his son Mansukh Lal, who died in Samavat year 2010 and Smt. Jamna Bai and Smt. Chosar Bai were not the heirs of Mansukh Lal. Raj Kunwar who was also excluded from succession being a daughter of Magan Lal. The appellants redeemed the properties No. 1 and part of property No. 2 after the expiry of the period of limitation and, therefore, the plaintiffs cannot claim any benefit in them and they are not entitled to get any share by way of partition. The appellants spent a sum of Rs. 22,000/- on the redemption of these properties and as such the suit filed by the plaintiffs is insufficiently stamped and deserves to be dismissed. On the basis of the pleadings of the parties the trial Court framed eight issues. The plaintiffs in support of their case examined six witnesses while the defendants, in support of their case, examined twelve witnesses in rebuttal. Documentary evidence was, also produced on behalf of both the parties. The learned Civil Judge, Udaipur by his decree and judgement dated March 22, 1971 passed a preliminary decree in favour of the plaintiff No. 1 and defendant Nos. 1 and 8 and 11 in respect of the property Nos. 3, 4 and 6 but, however, dismissed the suit filed by the plaintiff No. 2 Smt. Sajjan Bai in toto. The learned trial Court also dismissed the suit of the plaintiffs in regard to the property No. 5 and held that the suit property was of the exclusive ownership of Ganesh Lal. The learned trial Court also dismissed the plaintiffs' suit in regard to the properties No. 1 and part of property No. 2 by holding that the appellants redeemed the suit property after the expiry of the period of limitation and this property, therefore, could not be made available of partition amongst the other heirs and original mortgagors. Dissatisfied with the decree and judgment dated 22-3-1971 passed by the learned Civil Judge, Udaipur the plaintiffs preferred an appeal before the learned District Judge Udaipur. The contesting defendants namely Ganesh Lal, Mohal Lal, Harak Lal and Kanhaiya Lal filed the cross-objections in the appeal so far as the decree of the trial Court was against them. The learned District Judge, Udaipur, partly allowed the appeal filed by the plaintiffs but he did not pass any order, regarding the cross objections filed by appellants and, therefore, they filed a review petition before the learned District Judge. It is against this decree and judgement dated 29.6.1976 partly allowing the appeal filed by the plaintiffs that the appellants have preferred this second appeal. Defendant Nos. 1 and 2 filed cross-objections. Defendant No. 9/1 Bhanwar Lal also filed cross-objection. As the appeal and the two cross-objections arise out of the same decree and judgment, all these three are being decided by this common judgment.
(3.) The first contention raised by the learned counsel for the appellants is that the property No. 1 and part of the property No. 2 were redeemed by the appellants after the expiry of the period of limitation, and, therefore, the mortgage ceases to subsist and as such the appellants or the other co-laterals have no right to get their share in the period of limitation and the mortgagors title comes to an end. According to the learned Counsel for the appellants, the property No. 1 and part of the property No. 2 were obtained by the appellants from the former mortgagees on payment of money in the years 1962 and 1963 after the redemption had become time barred, could not be made available for redemption by other co-mortgagors and such mortgage could not have been revived in the years 1962 and 1963. The property acquired by the appellants after the period of limitation could not enure for the benefit of the other co-lateral heirs including the plaintiffs. The second limb of the argument of the learned counsel for the appellants is that the plaintiffs could have filed a suit within the period of 60 years from the date of the mortgage and the present suit is clearly barred by time and deserves to be dismissed.;