S.K.MAL LODHA, J. - (1.) A learned Single Judge of this Court by his, order dated April 21, 1976, declared the case to be a fit one for appeal to the Division Bench under Section 18(2) of the Rajasthan High Court Ordinance, 1949 and as such, this special appeal has been filed against the judgment dated April 21, 1976 passed by him.
(2.) THE plaintiff is Abdul Gaffar and the original defendants were Mohd. Umar (defendant No. 1), Abdul Aziz (defendant No. 2), Abdul Mazid (defendant No. 3) and Mohd. Ramzan (defendant No. 4). Defendants 3, 4 and 2 have died and they are represented by their legal representatives. They are all appellants, as per the amended cause title of the appeal. The plaintiff is respondent No. 1 and defendant No. 1 Mohd. Umar is respondent No. 2 in this special appeal. The dispute is in respect of the house situate in Jodhpur City and which has been described in para 1 of the plaint. The house belonged to Mohd. Umar (defendant No. 1). He mortgaged this house with possession in favour of Abdul Aziz (defendant No. 2) for Rs. 3,000/ -, on December 7, 1962. Mohd. Umar (defendant No. 1) entered into an agreement to sell the house to the plaintiff Abdul Gaffar for Rs. 6,000/ - and received a sum of Rs. 1,600/ -, as an earnest money from the vendee. The agreement to sell dated August 7, 1963 is Ex. 1 on the record. Mohd. Umar (defendant No. 1) executed the sale -deed (Ex. 2) on September 2, 1963 and received a sum of Rs. 1,400/ - from the plaintiff in cash on that very day and the balance of Rs. 3,000/ - was left with the plaintiff for the purpose of redemption of the mortgage from Abdul Aziz (defendant No. 2). The notice (Ex. A -1) was served by the plaintiff to the mortgagee Abdul Aziz(defendant No. 2)), on 20 -9 -1963 intimating him of the sale in his favour. The mortgagee Abdul Aziz (defendant No. 2) was also requested by the plaintiff to redeem the mortgage and deliver the possession of the house on payment of the mortgage money amounting to Rs. 3000/ -. The plaintiff also sent a similar notice Ex. A. 2 to the mortgagee on November 4, 1963. The mortgagee did not pay any heed to the plaintiff's notice. He, thereupon, filed a suit on April 5, 1964 against the mortgagor Mohd. Umar (defendant No. 1) and the mortgagee Abdul Aziz (defendant No. 2) for redemption of the mortgage. On November 15, 1964, a preliminary decree for redemption was passed. Subsequently, a final decree was passed on June 1, 1965. The final decree was put in execution. The plaintiff Abdul Gaffar obtained the possession of the ground floor of the house on June 4, 1965. On that day, Abdul Mazid (defendant No. 3) father of the mortgagee Abdul Aziz (defendant No. 2) and Mohd. Ramzan (defendant No. 4) who is brother of Abdul Mazid (defendant No. 3) submitted an application under Order XXI, Rule 100, CPC to the executing court for restoration of possession of the house, which was illegally taken from them. The executing court, by its order dated June 27, 1966, accepted the application and ordered for the restoration of the possession of the house of Abdul Mazid (defendant No. 3) and Mohd. Ramjan (defendant No. 4). The mortgagor Mohd. Umar (defendant No. 1) entered into an agreement to sell (Ex. A. 3) in favour of the mortgagee's father Abdul Mazid (defendant No. 3) on August 17, 1963 and received a sum of Rs. 1,000/ - as the earnest money. The mortgagor Mohd. Umar (defendant No. 1) executed another document Ex. A. 4 on November 10, 1963, by which, he took Rs. 500/ - more towards the sale -price from Abdul Mazid (defendant No. 3). It may be mentioned that in the document Ex. A. 4, defendant No. 1 had stated that under pressure and fraud he has executed the sale -deed of the house in favour of the plaintiff Abdul Gaffar without consideration. Subsequently, the mortgagor Mohd. Umar (defendant No. 1) executed the sale -deed Ex. A. 6 in favour of defendants No. 3 and 4. This sale -deed (Ex. A. 6) was got registered on April 1, 1964 on receipt of full consideration. The plaintiff Abdul Gaffar filed the suit in the Court of Civil Judge, Jodhpur on February 21, 1966 alleging that the sale -deed Ex. A. 6 dated April 1, 1964 is void as it was executed after the execution of the sale -deed Ex. A. 2 dated September 2, 1963 in his favour. It was also averred that the agreement to sell Ex. A. 3 dated August 17, 1963 is a fabricated and made -up document. It was mentioned in the plaint by the plaintiff that as the mortgagee Mohd. Aziz (defendant No. 2) accepted the sum of Rs. 7,000/ - on May 1, 1965 as redemption money, he was estopped from setting up his title to the house in dispute. The main reliefs prayed for by the plaintiff in the plaint are these: (1) that the order of the executing court dated January 27, 1966 may be set aside; (2) that the plaintiff may be put in possession of the house; and (3) that the plaintiff be awarded Rs. 50/ - p.m. as mesne profits from the date of the suit. Defendants No. 2 to 4 (Abdul Aziz, Abdul Mazid and Mohd. Ramzan) filed a joint written statement on June 1, 1966 resisting the suit on various grounds. It is not necessary to state the grounds of defence, as they are covered by the issues framed by the trial court. Mohd. Umar (defendant No. 1) did not put in appearance.
(3.) THE trial court framed the following issues on July 13, 1966: (1) Whether Defendant No. 1 agreed to sell the disputed house to the plaintiff for Rs. 6,000/ - on 7 -8 -1963 and received Rs. 1600/ - on 7 -8 -1963 in part payment of the agreed price ? (P) (2) Whether the defendant No. 1 sold the house to the plaintiff on 2 -9 -1963 in pursuance of the agreement to sold dt. 7 -8 -1963 received Rs. 1400/ - from the plaintiff ? (P) (3) Whether the plaintiff by notice informed the defendant No. 2 to redeem the mortgage, failing which he would be liable for damages at rate of Rs. 50/ - per month ? (P) (4) Whether the defendants No. 2, 3 and 4 asked the plaintiff not to deposit the mortgage money in court and not to file appeal against the decree of the Civil Judge Jodhpur and requested him to pay Rs. 1700/ - to the defendant No. 2 before the delivery of possession of the house and that they would receive rest of Rs. 1300/ - on the delivery of the possession of the house to the plaintiff and the plaintiff paid Rs. 1700/ - on this representation to defendant No. 2 on 1 -5 -1965 and in presence of defendant Mohd. Ramzan (P) (5) Whether the plaintiff threatened defendant No. 2 that if he did not receive the mortgage money, he would be sent to jail and as such, he accepted Rs. 1700/ - ? (P) (6) Whether the defendants No. 2, 3 and 4 are estopped from setting up their title in view of the facts enumerated in paras No. 2, 3 and 7 of the plaint ? (7) Whether the plaintiff is entitled to mesne profits at rate of Rs. 50/ - p.m. ? (P) (8) Whether the sale -deed dated 2 -9 -1963 in favour of the plaintiff was executed to defraud the defendant No. 2, 3 and 4 and is invalid being collusive, without consideration and without delivery of possession ? (D) (9) Whether the defendant No. 1 contracted to sell the house to defendant No. 3 Abdul Mazid on 17 -8 -1963 for Rs. 6,000/ - and in part performance received Rs. 1,000/ - from the defendant No. 2, 3 and 4 of the same date and delivered possession of the house to them in part performance of the contract ? (D) (10) Whether the defendant No. 1 in furtherance of the contract dated 17 -8 -1963 executed another agreement on 10 -11 -1963 and further received Rs. 500/ - in furtherance of the contract ? (D) (11) Whether defendant No. 1 executed sale -deed in favour of the defendants No. 2, 3 and 4 on 1 -4 -1964 after receiving full consideration of sale ? (D) (12) Whether the court -fees paid by the plaintiff is deficit ? (D) (13) Whether the defendant in entitled to special costs ? (D) (14) Relief ? The parties led their evidence. The trial Court decided Issues No. 1 and 2 in favour of the plaintiff. It was found that Mohd. Umar (defendant No. 1) had agreed to sell the house in dispute to the plaintiff on August 7, 1963 and subsequently sold the same to him by means of the sale -deed dated September 2, 1963. It also came to the conclusion that the agreement dated August 17, 1963 was executed by Mohd. Umar (defendant No. 1) in favour of Abdul Mazid (defendant No. 3). According to it, the decision on Issue No. 9 was not material so far as the plaintiff Abdul Gaffar was concerned. On the question relating to handing over of possession of the house to Abdul Mazid (defendant No. 3), the trial Court has observed in its judgment as under: So far as the handing over of possession is concerned, the house was already in possession of the defendants as mortgaged and it has already been decided while deciding the Issue No. 1 that it is wrong to suggest that any further possession was handed over to them. I have already discarded the evidence of D.Ws. 1 and 2 so far as this fact is concerned. It, accordingly, decided Issue No. 9 in favour of defendants No. 2 to 4 and against defendant No. 1 observing that this would not affect the rights of the plaintiff at all.;