JOSHI TRIKAMDAS PADAMSI Vs. JOSHI PRANLAL PARSHOTTAM

JUDGEMENT

(1.) This appeal under S.100 of the Code of Civil Procedure, 1908 is directed against judgment and decree dated March 14, 1983, rendered by the learned Assistant Judge, Kutch at Bhuj, in Regular Civil Appeal No. 82 of 1980, by which decree of eviction dated August 27, 1980, passed by the learned Civil Judge (J.D.) Anjar, in Regular Civil Suit No. 47 of 1977 against the appellant, who was tenant inducted by mortgagees, is confirmed.

(2.) The facts leading to the present appeal are as under. The dispute between the parties relates to a shop situated towards the west of steps on southern side door of Madhav Raiji Temple, Anjar. The original owner of the suit premises was Thakorshi Naranji. He had mortgaged property to Laxmidas Mulji and Padamshi Mulji for 3,001 Kories for 51 years by registered mortgage deed which was executed on Kartik Vad-5 of S.Y. 1967. The original appellant, i.e., Joshi Trikamdas Padamshi was inducted as a tenant in the suit premises in S.Y. 1995 by the mortgagees in possession. Thereafter, deceased Pokena Joshi Kanku Hariram, father of original plaintiff and heir of original owner of suit premises had again mortgaged the same property to deceased Manu alias Dayaram Laxmidas who was heir of original mortgagees, husband of original defendant No. 1/2 and father of original defendant Nos. 1/1, 1/3 and 1/4 by a registered deed dated Jeth Sud-5 of S.Y. 2003 for 99 years and accepted 12,350 Kories. The first mortgage deed is produced at Ex. 55 whereas the second mortgage deed is produced at Ex. 56 on the record of the case. From the contents of Ex. 56, it is evident that on execution of subsequent mortgage deed, mortgage evidenced by deed Ex. 55 had come to an end and did not subsist thereafter. It was the case of respondent No. 1 that long term of 99 years for redemption being a clog on equity of redemption, he was entitled to redeem the mortgage by making full payment of mortgage money to defendant Nos. 1/1 to 1/ 4 who were heirs of original subsequent mortgagee. According to respondent No.1, though he had offered full payment of mortgage money to defendant Nos. 1/1 to 1/4, they had failed to deliver possession of the property to him. Under the circumstances, respondent No. 1 filed suit for redemption of mortgage. The original appellant was impleaded as defendant No. 2 because he was inducted as tenant by mortgagees in possession. It may be stated that during the pendency of the Second Appeal, original appellant expired and his legal representatives have been brought on the record of the case.

(3.) Original defendant No. 1/1 contested the suit by filing written statement at Ex. 21. In the said reply, it was contended that, as the period of mortgage was stipulated to be 99 years, the suit was premature and was liable to be dismissed. It was pleaded that, in fact, father of respondent No. 1 had not mortgaged the property to deceased Dayaram Laxmidas, but the property was sold by father of respondent No. 1 to deceased Dayaram Laxmidas and, therefore, suit for redemption of mortgage was not maintainable. In the reply, it was further averred that original defendant No. 2, i.e., deceased appellant, having been lawfully inducted as tenant by mortgagees in possession, suit by respondent No. 1 for possession of property in question should be dismissed. No written statement was filed by defendant Nos. 1/ 2, 1/3 and 1/4.