SHANKAR Vs. BAYANABAI

JUDGEMENT

(1.) This appeal u/s. 100 of the Code of Civil Procedure is by the Original defendant no.9 and his heirs have been brought on record during pendency of the appeal. One Damdu and his mother Gangu filed suit for redemption and possession of the suit land on the basis of Mortgage deed dt. 17.2.1906 as legal heirs of Laxman, who had executed said Mortgage deed in favour of one Wagirbhai and his son for a consideration of Rs.300/- redemnable on 15.5.1965. The present appellant (Original defendant no.9) purchased part of the property so mortgaged from one Harakchand and Harakchand, in turn, had purchased the property from heirs of Wagirbhai and his son, to whom it was mortgaged by Laxman. The suit for redemption was opposed by the defendant no.9, who claimed that he purchased the field Survey No.8/2 by registered Sale deed dt. 18.4.1975 and is in possession of the same. The plaintiffs had pointed out the decision in Regular Civil Suit No.112-A of 1958 and decision in appeal therefrom registered as Civil Appeal No.75-A of 1959 decided on 25th November, 1959. They contended that mortgage and right of redemption stood concluded in their favour in view of these judgments. The defendant no.9, who filed joint written statement with defendant no.8, accepted that the suit field purchased by him was carved out of field Survey No.8 which was joint family property of Laxman and Ragho. According to them, after death of Laxman property devolved upon Raghoba by survivorship and as such, Raghoba alone had right of redemption. They, therefore, contended that Kamalji, who filed earlier Civil suit and appeal, had no right to seek redemption and the appellate judgment could not act as resjudicata. The trial Court framed the following issues and answered the same as under : ISSUES FINDINGS

(2.) During the arguments, Mr. Lambat, Adv. appearing for the legal heirs of appellant/defendant no.9 has contended that Question nos. 2 and 3 in memo of Second Appeal are also involved and should be formulated as substantial questions of law. I find that it is only different shade of question nos. 1 and 4 which have been treated as substantial questions of law by this Court at the stage of admission. It is, therefore, not necessary to treat question Nos. 2 and 3 separately as questions of law again.

(3.) Mr. Lambat, Adv. has contended that the suit, as filed on the basis of Mortgage Deed, was itself not maintainable because the Original Mortgage Deed was not filed on record. He further states that there was dispute about the date of Mortgage Deed also and he states that the said date was not 17th February, 1906 but 17.2.1905. He futher states that even in the earlier Civil Suit No.112-A/1958 the original Mortgage Deeds of these dates were not filed and as such, there cannot be any issue of res-judicata and the Courts below have committed error in applying the said principal and decreeing the suit. He further argued that after Laxman, right of redemption of Mortgage could not and did not pass on to his widow, but by survivorship it devolved upon his brother Raghoba and hence, the judgment in Civil Suit and appeal are totally misconceived as this angle is not looked into. He contends that the defendant no.9 has come into picture much later after the decision of these Civil Suits and hence, the judgment cannot operate as res-judicata against him.