ABDULRASOOLSAB CHAMANASAB FHANIBAND Vs. RUTH

JUDGEMENT

(1.) these two appeals arise out of a common judgment and decrees passed in r.a. No. 43/1987 and r.a. No. 44/1987 passed by the civil judge, gadag. The facts leading to these appeals briefly stated are as under:

(2.) plaintiff-respondent filed o.s. No. 133/1985 on the file of the ii additional munsiff, ii court, gadag praying for a decree to redeem the mortgaged property; for reconveyance of the mortgaged property and for 'future mesne profits.' the case made out by the plaintiff can be summarised as follows: the suit property, viz., cis. No. 6016/1-a comprising of a house and open site and situate at betageri (gadag) originally belonged to the ownership of one basappa prabhanna gutti and six others. They had mortgaged with possession the said property to defendant on 18-6-1977 for Rs. 1,500/- for a period of eight years. Plaintiff and one susanna purchased the suit property on 29-9-1981 from the said basappa and others for Rs. 4,000/- and thereby became the owners of the property, acquiring the right to redeem. The mortgage period expired on 18-6-1985. Plaintiff issued a notice dated 3-6-1985 to defendant calling upon to reconvey the suit property by taking the mortgage amount of Rs. 1,500/- after the mortgage period was over. Defendant refused to receive the notice. The joint owner susanna has been residing at kuwait. Under these circumstances, plaintiff alone filed the suit praying for the relief referred to earlier.

(3.) defendant (appellant) resisted the suit by his written statement. In short defendant contended as follows: the suit filed by plaintiff alone without making susanna a party is bad in law for want of necessary party. Defendant was a tenant on a yearly rent of Rs. 20/-. The suit house was in a dilapidated condition. The owners, viz., basappa and others were not in a position to effect repairs. They were also in need of money for legal necessity. They, therefore, mortgaged the property with possession for Rs. 1500/-. Apart from the conditions incorporated in the mortgage deed there was also an oral agreement between basappa and others on the one hand and the defendant on the other to the effect that the defendant should reconstruct the building the cost of which should be repaid by the former and that defendant should continue in possession even after the mortgage period was over, on the same rent on which he was holding the property on lease next before the mortgage was executed. Accordingly he reconstructed the building at the cost of rs.10,000/-. Unless, therefore, the said sum along with the mortgage amount of Rs. 1,500/- is paid, redemption cannot be had. At any rate, even if the plaintiff is entitled for redemption, defendant cannot be directed to deliver possession. The other allegations in the plaint were suitably denied. On these contentions defendant prayed for dismissal of the suit.