SHANKARLAL NATHUMAL CHANDAK Vs. BALKRISKNA JAGANNATH GUJARATHI

JUDGEMENT

(1.) All these three appeals arise out of the common judgment in the appeals filed by the defendants. Though original suits were different, all the three appeals were admitted by one word order "Admit" and no questions of law were formulated at the time of admission. After hearing the learned Counsel for the parties and perusal of the impugned judgment, the following substantial questions of law arise in the present appeals:

(2.) Heard the learned Counsel for the parties. Perused the impugned judgments and the relevant documents. Facts of each of the appeals may be briefly stated.

(3.) Property involved in this appeal is City Survey Nos. 1147 and 1148 (Old No. 3294) situated at Nashik. This property was originally owned by one Bhausa Chimansa, who was owner of the big property. He executed mortgage deed in respect of suit property in favour of the Rangildas Devchand firm on 25.10.1880. As per the mortgage deed, mortgagor could redeem the mortgage on expiry of four years. However, right of redemption was not used by the original owners or his legal heirs. On 13.3.1924 defendant No. 1 Rangildas Devchand, i.e., the original mortgagee executed assignment deed in respect of suit property in favour of one Deubai Rangu Pansare and put her in possession of the suit property. Property was open land. Deubai made construction of the house on the said property. On 18.8.1945 Deubai executed a registered sale deed cum assignment deed in favour of the defendant No. 18 Vishwanath Bhambere, who is appellant in this appeal and put him in possession of the said suit property. Respondent Nos. 1 to 10 , who are the legal heirs of the original owner and mortgagor, filed regular civil suit No. 170 of 1968 before the Civil Judge Junior Division, Yeola for redemption of mortgage and possession of the mortgage property against the present appellants and other defendants. According to the appellant, suit is barred by the limitation. Deubai had purchased open site and after construction , constructed premises were sold to the present appellants and, therefore, no mortgage is subsisting. He also claimed that Transfer of Property Act, 1882 was not applicable and in case, redemption is granted, he is entitled to refund of Rs. 3,750/- which was spent by him for repairs and maintenance of the house. The trial Court rejected the contentions of the defendant and passed the judgment and decree dated 31.10.1973. The present appellant preferred regular civil appeal No. 42 of 1974 before the District Judge, Nashik. That appeal came to be dismissed on 31.10.1985. Hence, the second appeal.