- (1.) This second appeal under Section 100 CPC has been filed by the appellants-defendants (hereinafter referred to as 'the defendants') against the judgment and decree dated 6.1.2015 passed by the Addl. District Judge, Sawai Madhopur in Appeal No. 330/2009 (06/2007) (hereinafter referred to as 'the Appellate Court'), by which the appeal filed by the defendants has been dismissed and the judgment and decree dated 23.11.2006 passed by the Addl. Civil Judge (Sr. Division), Sawai Madhopur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 138/2001 (247/85, 12/86, 289/96), decreeing the respondents- plaintiffs (hereinafter 'the plaintiffs') suit for redemption and possession, has been affirmed.
(2.) Facts of the case are that the plaintiffs filed a suit for redemption and possession of a shop, as described in para no.1 of the plaint. It was mentioned in the plaint that on 1.3.1956, the suit property was mortgaged by one Shri Narayan in favour of the defendant no.1 in lieu of a consideration of Rs. 3500/-. The said mortgage deed was registered on 2.1.1957. The original plaintiff Kalyan Mal filed a suit against the aforesaid Shri Narayan, which was decreed by the Civil Judge vide its judgment and decree dated 28.1.1961. In execution proceedings, the suit property was put to auction by the executing court. On 3.3.1965, the suit property came in the hands of the original plaintiff and the auction proceedings came to an end. The sale was confirmed by the court concerned vide its order dated 10.7.1965. On confirmation of sale in favour of the plaintiff, in place of Shri Narayan, the original plaintiff became the mortgagor of defendant no.1 (mortgagee). It was also mentioned in the suit that from the date of mortgage, the defendant no.1 let out the suit property to defendant no.2 and started obtaining rent. On account of having received more money than the money for which the suit property was mortgaged, the suit property automatically got redeemed. The original plaintiff sent a registered notice to the defendant on 17.12.1984, but defendant no.1 neither handed over the possession of the suit property nor stopped receiving rent from defendant no.2 who in turn did not discontinue paying the rent to defendant no.1. In this view of the matter, suit for redemption and possession of the property was filed by the plaintiff.
(3.) The defendant no.1 filed written statement denying the averments made in the plaint. It was denied that there was no relationship of mortgagor and mortgagee between the plaintiff and the defendant no.1. It was also submitted that the suit was not filed within the prescribed time of limitation. It was also submitted that towards interest on the mortgage amount, Shri Narayan had received the rent but Shri Narayan never repaid the rent. Thus, rent was due to be paid by Shri Narayan, which the defendant no.1 was entitled to recover from Shri Narayan for the reason that the defendant no.1 was having charge on the suit property. It was also submitted that at the time of mortgage, the suit shop was in a dilapidated condition. The defendant no.1 incurred Rs. 5000/- on renovation of the suit property. It was further submitted that when Shri Narayan failed to repay the mortgage amount and could not redeem his charge over the suit property, he sold the same to the defendant no.1 on 23.10.1964 for a consideration of Rs. 6000/-. It was further submitted that after sale of the suit property on 23.10.1964 by Shri Narayan, Shri Narayan continued to occupy the suit property as a tenant. When Shri Narayan did not pay a single penny towards rent, the defendant no.1 filed a suit for eviction and recovery of rent against Shri Narayan. The Magistrate concerned, Sawai Madhopur considering the defendant no. 1 to be the owner of the suit property passed a judgment and decree for recovery of rent and eviction in favour of defendant no.1. In the execution proceedings, vide order dated 16.4.1977 passed by AMJM, Sawai Madhopur, possession of the suit property was handed over to the defendant no.1 and since then he has been in possession of the suit property. It was further submitted that when sale in auction proceedings were confirmed on 10.7.1965, the plaintiff was required to file a suit for possession within 12 years therefrom, but the suit was filed in the year 1985 which being barred by limitation was liable to be dismissed. It was also submitted that during the auction proceedings, a compromise was arrived at between the plaintiff and the defendant no.1 and it was agreed that the disputed property of Shri Narayan would be joint property of plaintiff and defendant no.1 and both would keep the mortgaged property and it was also agreed that the suit property would be partitioned between them on the basis of proportion of decrees. An agreement dated 1.3.1965 was executed by the plaintiff in favour of the defendant no.1, which was duly signed by him. In this view of the matter, the plaintiff is not the sole owner of the suit property. Shri Narayan calculated the decretal amount and after adding the mortgage amount therein, the amount was assessed to be Rs. 9500/- and for this purpose, an agreement dated 14.5.1964 was executed by Shri Narayan in favour of the defendant no.1 wherein he agreed to sell the shop to the defendant no.1 since he had not paid the amount of Rs. 9500/-. On the basis of the said agreement, on 23.10.1964 he executed the sale deed of the disputed property in favour of the defendant no.1 and since then the defendant no.1 is in possession of the suit property.;