RAMLAL Vs. PIYARI BAI

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered in this defendants' second appeal are as under: -

(2.) Sunder - original plaintiff (who died during the pendency of suit) filed a suit for declaration and permanent injunction in relation to the lands described in Schedule A of the plaint stating inter alia that Sumer Sai - grand-father of the original plaintiff, who died before the settlement operations, patta was prepared in the name of his son Nahkul Ram. The original plaintiff is son of Nahkul Ram. It was pleaded that father of the original plaintiff namely Nahkul Ram had no right to execute mortgage deed in favour of Ram Prasad on 10-3-1945 for a period of nine years and it was agreed that after the lapse of said period, if an amount of Rs. 200/- is repaid, the land shall be returned back to the plaintiff's father by said Ram Prasad and as such, the amount of mortgage was paid by the plaintiff to Ram Prasad in the year 1955-56 and possession was taken from him. It was further pleaded that since the defendants tried to interfere with possession in the suit lands, the institution of suit for declaration of title and permanent injunction was necessitated. It is pertinent to mention here that during the pendency of first appeal, application seeking relief of possession was filed and that was granted by the first appellate court as recorded in paragraph 21 of the judgment of the first appellate court.

(3.) The defendants / appellants herein filed their written statement denying the averments made in the plaint stating inter alia that since the aforesaid mortgage was conditional mortgage and there was a condition that if the amount of mortgage is not repaid within a period of nine years from its date, the said mortgage shall become sale and that will amount to sale of the said property. It was further pleaded that after the lapse of period of mortgage, none has claimed the return of property from Ram Prasad, therefore, he became the absolute owner of the suit land and in partition, the property fell in the share of Ramwriksh - his brother and after death of Ramwriksh, the suit land was succeeded by his wife & son namely Smt. Shivratiya Devi & Durga Prasad, respectively, and his daughter Kum. Sita, and they sold the suit land by registered sale deed dated 14-12-1968 to the defendants and since then, they are in exclusive possession of the suit land. It was also pleaded that the plaintiff, who remained absconded for a fairly long time since 1945-46, returned to the village in the year 1983 and initiated a proceeding under Section 170-B of the M.P. Land Revenue Code, 1959 which was decided against him on 29-6-1983. The plea of suit having been barred by limitation and the plea of adverse possession were also setup by the defendants before the trial Court.