MOHAN CHANDRA TAMTA Vs. ALI AHMAD

JUDGEMENT

(1.) This appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17. 4. 1979, passed by learned Civil Judge, Almora, in Civil Appeal No. 10 of 1975, whereby judgment and decree dated March 20, 1975, passed by Munsif, Almora, in Civil Suit No. 20 of 1969, decreeing the suit for possession, is set aside and suit is dismissed.

(2.) HEARD learned Counsel for the parties and perused the record.

(3.) DEFENDANT No. 3 Mustafa Shah Khan filed his separate written state ment admitting the details of the property, but he also denied the title of the plaintiff. This defendant has pleaded that none of Pir Bux, Kalia or Shivrati had any right or title over the disputed property nor were they in possession of the property. It is denied that defendant Nos. 1 and 2 were licensee of Lalta Prasad (predecessor in title of the plaintiff Mohan Chandra Tamta ). It is ad mitted that suit filed by Lalta Prasad was dismissed by Civil Court. It is also specifically pleaded that rights of Ahmadulla Khan were not that of mort gage nor is there question of redemption of the property. In the additional pleas, the defendant No. 3, states that suit is bad for misjoinder of causes of ac tion and alternative relief of redemption is barred by Rules 4 and 5 of Order XXXW of Code of Civil Procedure, 1908. It is also pleaded that assuming for a moment that there was a mortgage, in that event, suit for redemption is barred by time. According to this defendant from Ahmadulla, the property was suc ceeded by his sons Mahmood Ahmad Shah Khan and Masood Shah Khan, whereafter, Jahir Shah Khan son of Ahmad Shah Khan succeeded the prop erty and finally it came to the ownership of defendant No. 3. It is denied by de fendant No. 3 that Ilahi Bux was son of Kalia or that the Hafizan was his wife. It is also denied that Gulam Farid was son of Pir Bux. Alleging that the sale deed, executed in the year 1966, is a forged one, it is stated that Lalta Prasad had no right over the property in suit nor could he transfer it to the plaintiff. It is also stated by this defendant that Vilayat Hussain had no con cern over the property in suit and compromise entered between Vilayat Hussain and Lalta Prasad is not binding on the answering defendant. In para 32 of the written statement of defendant No. 3, it is pleaded that as per the family settlement of the defendants, their ancestral family properties of Almora, Ranikhet and Rampur, were partitioned and the property of Almora and Ranikhet, came in the share of Jahid Shah Khan.