NARSINHBHAI KALYANBHAI DALWADIAGED Vs. DALWADI BHAVAN MANAJI

JUDGEMENT

(1.) THE present Second Appeal under Section 100 of the Code of Civil Procedure,1908 is preferred by the appellants - original plaintiffs against the judgement and decree dated 30th April,1981 passed by learned Civil Judge (J. D.), Limbdi in Regular Civil Suit No. 96 of 1978, confirmed by learned Assistant Judge, Surendranagar in Regular Civil Appeal No. 59 of 1981.

(2.) THE appellants - original plaintiffs instituted Regular Civil Suit No. 96 of 1978 in the court of learned Civil Judge (J. D.), Limbdi for a declaration and permanent injunction that they are the owners of the suit field bearing Survey No. 785 admeasuring 5 acres and 15 gunthas and they are in actual and physical possession of the said field. It appears that the appellants-original plaintiffs relied upon the agreement to sell Exh-40 and so called sale-deed executed by defendant Nos. 1 and 2 Exh-41. Defendant Nos. 1 and 2 as such admitted that the original plaintiffs were in possession of the suit properties as mortgagee and the alleged Agreement-to-sell and sale deed alleged to have been executed by defendant Nos. 1 and 2 are concocted and not binding to them. The learned Trial Court partly decreed the suit granting declaration that the original plaintiffs, as mortgagee, were in possession of the suit fields bearing Survey Nos. 785,922 and 924 and thereby, defendants were restrained from obstructing the possession of the plaintiffs with respect to the suit fields without taking due course of law. Being aggrieved and dissatisfied with the judgement and decree passed by learned Trial Court, original plaintiffs preferred Regular Civil Appeal No. 59 of 1981 before the District Court, Surendranagar and the learned Assistant Judge, Surendranagar by impugned judgement and order dated 28th February,1983, dismissed the said Appeal with a clarification that the appellants - original plaintiffs are the mortgagee in possession of the suit fields bearing Survey Nos. 785, 922 and 924 and the defendants not to disturb the possession of the plaintiffs as mortgagee without getting properties redeemed. Learned Appellate Court has also held that the defendants are entitled to redeem the properties. Being aggrieved and dissatisfied with the impugned judgement and order passed by the learned Appellate Court, appellants-original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure,1908.

(3.) WHILE admitting the present Second Appeal, the learned Single Judge has formulated the following substantial question of law :-