KAILASH CHANDRA Vs. ASHFAQ AHMAD AND ANR.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the I Additional District Judge, a Bareilly dated December 23, 1977. On September 9, 1968 the defendant No. 2 executed a mortgage in favour of the defendant No. 1 by registered deed for consideration of Rs. 1,000/ - in respect of property described as Khandahar. The mortgage was usufructuary. The period of redemption was specified as four years Commencing from the date of mortgage. The mortgagee was put in possession in pursuance thereof. The plaintiff made purchase of the equity of redemption from the defendant No. 2 by registered deed of sale executed on January 19, 1970. On July 17, 1973 the plaintiff brought the suit giving rise to this appeal for redemption and possession over the property covered under the mortgage. The defendant No. 1 the mortgagee resisted the suit pleading that the sale obtained by the plaintiff is invalid and that this was so adjudicated in original suit No. 182 of 1970 in between plaintiff and the defendant No. 1. It was denied that the plaintiff has the right to redeem, the right, it was contended, inhered in the defendant No. 2 alone. It was further asserted that the defendant No. 1 had invested nearly Rs. 700/ - in making improvements on the land and he is entitled to reimbursement thereof.

(2.) LEARNED Munsif Havali, Bareilly dismissed the suit on January 31; 1976. In appeal filed by the plaintiff the judgment and decree of the trial Court were reversed. It was held that there was no bar of res -judicata operating against the plaintiff and that the defendant No. 1 is estopped from denying the right of the plaintiff to redeem the mortgage. It was found also that the defendant No. 1 is not entitled under the law to the reimbursement of Rs. 700/ - or any other amount for that matter.

(3.) IN so far as the plea of res judicata raised by the defendant No. 1, in the Court below is concerned, it appears that the plaintiff instituted original suit No. 182 of 1970 against the defendant No. 1 claiming demolition of the construction raised by the defendant No. 1 beyond the land covered under the mortgage dated September 9, 1968. The relief sought Was possession over the land on which the construction had been raised and the demolition of the construction In defence it was pleaded in that suit that the property belonged to Abdul Hamid who had executed a deed of Waqf on September 4, 1913 and there could be no mortgage executed in respect thereof. The Additional Munsif, Bareilly dismissed the suit on September 29, 1973 on this basis. The matter then came in Civil Appeal No. 241 of 1973 filed by the plaintiff. The appeal was decided by the Civil Judge, Bareilly on May 14, 1974. The finding arrived at by the appellate Court was that the certified copy of the waqf deed sought to by relied be the defendants therein was not admissible in evidence and there was no legal evidence to prove the creation of the Waqf. It was found further that the plaintiff had not established that the defendants had trespassed beyond the limits of the land covered under the mortgage. The appeal was, therefore, dismissed but on the footing that it had not been proved that there was encroachment made upon any piece of land besides the land covered under the deed of mortgage. The bar of res judicata does not arise for the obvious reasons namely: - -