ANJUBEN VALJI & 6 Vs. SONI VRAJLAL TAPUBHAI

JUDGEMENT

(1.) THIS appeal arises out of a judgement and decree of the trial Court dated 22.8.1989 passed in Regular Civil Suit No. 2/1982 and the appellate order dated 11.7.1994 passed by the Assistant Judge, Bhavnagar in Regular Civil Appeal no. 60/1989. The appellants were the original plaintiffs. They had filed a civil suit with a prayer for redemption of mortgage of the suit property in the nature of a shop, upon returning of the mortgage amount of Rs.2300/ to the defendants and for being handed over the possession of the mortgaged property. Such suit was dismissed by the trial Court. First Appeal was dismissed by the Sessions Court. Hence this Second Appeal.

(2.) AT the outset, one may record the facts in brief. The appellants original plaintiffs are the owners of a shop in village Gathda. The predecessorintitle of the plaintiffs had mortgaged the said property in favour of one Darji Bhuralal Laxmanbhai by creating a mortgage deed dated 28.11.1952. It is the case of the plaintiffs that in order to repay the mortgage money to the said Darji Bhuralal Laxmanbhai, the shop was mortgaged in favour of Khimji Zaverbhai, HUF, by borrowing a sum of Rs.2300/ on 11.12.1959. As per the terms of the mortgage, the mortgagor would not claim any rent of the property, the mortgagee would not be entitled to interest on the mortgaged money. On the premise that when the plaintiffs offered to repay the mortgage amount to redeem the mortgage, the defendants refused to do so, the said suit was filed before the Court of Civil Judge (Junior Division) Gathda.

(3.) THE defendant no.7 claiming that in a family arrangement he was assigned the mortgaged shop, filed a detailed written statement at exh.13 and opposed the suit. In such written statement, the creation of mortgage for a sum of Rs.2300/ was accepted. It was however, averred that prior to creation of the said mortgage on 12.12.1959, the defendants were already enjoying the possession of the suit property as tenants for a monthly rent of Rs.7.50. It was therefore, contended that the plaintiffs have no right to reclaim the possession of the suit property by merely returning the mortgage amount of Rs.2300/ since even after redemption of such mortgage, the preexisting tenancy would survive. The said defendant in the written statement agreed to redemption of mortgage upon returning of the money but opposed the prayer for eviction. The trial Court framed the following issues :