VORA IBRAHIMJI DOSAJI Vs. VORA IBRAHIM NOORBHAI MAKATI

JUDGEMENT

(1.) This is plaintiff's Second Appeal.

(2.) . Essential facts for disposal of this Appeal are as under : One Dosaji Ismail owned and possessed pertain immovable properties in Jamnagar. He died leaving behind four sons, viz., Ibrahim, Adbul, Ahmad and Ajgar and widow Amtulla and the daughter Husena as the heirs and legal representative. After death of Dosaji Ismail, Ibrahim, his eldest son executed mortgage deed on 8.3.1947 in favour of one Kadarbhai for Rs. 2000/- and delivered possession of the mortgage property to the mortgagee. On the same day the second son Abdul had also executed mortgage in favour of Kadarbhai, aforesaid, for Rs. 2000/- and delivered possession of the property mortgaged. Ibrahim as well as Abdul failed to pay the mortgage debt and redeem the property. Hence, two separate suits No. 96/61 and 98/61 were filed against Ibrahim and Abdul by the plaintiff. Preliminary Decree was passed, but thereafter no application for final decree was moved. Original mortgagee Kadarbhai also expired and his four sons, defendants Nos. 1 to 4 had sold the rights of mortgagee in view of the above Decree to a firm M/s. Vora Ibrahim Noorbhai and others, defendant No. 5. The said firms was run by Mohmadali Makati, Ibrahimji and Kadarbhai. On 8.8.1962 Husena, daughter of Dosaji Ismail sold her share in the property of Dosaji Ismail to the above firm. In this way the firm-defendant No. 5 became owner of the share of Husena. On or about 3.11.1975 the said firm was dissolved and under the arrangement between partners the property in dispute went to the share of Vohra Ahyabhai Kadarbhai, the defendant No. 10. Accordingly the Suit for redemption was filed by Ibrahimbhai to redeem the mortgage deed dated 8.3.1947 and for recovery of possession of the mortgaged property.

(3.) . The defendants Nos. 5 to 10 contested the Suit on variety of grounds denying the execution of mortgage and delivery of possession to the mortgagee. The plea of bar of limitation and perfection of title by adverse possession was also raised by them. They also pleaded that the Suit is bad for non-joinder of necessary parties.