CHAUDHARY DALSANG VALA Vs. CHAVDA DAPUJI BHARTHAJI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 09.09.1987 passed by the learned District Judge Mehsana in Regular Civil Appeal No. 44 of 1983 whereby, the said appeal was allowed and the original plaintiffs suit for redemption for the whole property was decreed.

(2.) THE facts in brief leading rise to the filing of the present appeal are that the original plaintiffs had filed suit bearing Regular Civil Suit No. 62 of 1975 in the Court of learned Civil Judge (JD) Visnagar praying to recover the possession of the mortgage property bearing land Survey No. 427 admeasuring 1 Acre 3 Gunthas, situated in the sim of Village Dadhial, Taluka Visnagar from the defendants on the ground that the mortgage property was the joint co-ownership and possession of the plaintiffs. THE trial Court after hearing the parties vide order dated 30.10.1982 partly allowed the suit and permitted the original plaintiffs to redeem their share of the mortgage property.

(3.) HEARD learned counsel for the respective parties and perused the documents on record. While appreciating the evidence on record, the lower appellate Court has recorded a finding that in the present case, the doctrine of lis pendent will be applicable inasmuch as during the pendency of the suit, the original plaintiffs no. 1 and 2 had sold undivided share to original defendant no. 1, who was in possession of the suit property. It is however observed that the properties transferred or otherwise dealt with by one of the party so as to affect the right of the other plaintiffs, it is necessary to apply the doctrine of lis pendent and if the same is not applied in the present case, original defendant no. 1 would frustrate the right of the present plaintiffs to obtain redemption of the mortgage property and to obtain possession of the suit field. Thus, the lower appellate Court ordered that the plaintiffs can redeem the whole mortgage property on payment of Rs.651/-.