SHUKAR HANAN MUTAWALI Vs. MALKAPPA

JUDGEMENT

(1.) This Second Appeal has been preferred by the plaintiffs against the concurrent decrees of the two courts below dismissing their suit for redemption of the mortgages and for possession of the mortgaged lands.

(2.) One Shaikh Farid alias Bada Saheb Bawa Miraj Mutawalli had mortgaged the land from Survey No. 442 as described in para (1) (a) of the plaint with Malkappa Anna Nakate for Rs. 500/- on 30th October, 1877. The period of mortgage was four years. One Ashama wife of Sultan Mutawalli had mortgaged some land from the said survey number with Malkappa on 1-12-1897. The period of the mortgage was 15 years, One Lalbi wife of Nabi Mutawalli had mortgaged some land from the said survey number with the same Malkappa on 28-8-1897. The first mortgage was for a consideration of Rs. 500/-, the second for a consideration of Rs. 500/- and the third mortgage was for a consideration of Rs. 80/-. All were usufructuary mortgages. Three different pieces of lands appeared to have been mortgaged under these three mortgages, though from the same survey number. The area of the land mortgaged under the first mortgage was 5 acres 36 1/2 gts., under the second mortgage 2 acres 10 gts. and under the third mortgage 1 acre. All these three pieces of lands have now been included in R. S. No. 581 Pot No. 4 admeasuring an area of 12 acres 14 gts. The original mortgagors are dead. According to the plaintiffs the right of redemption of the mortgages had come to their branch. The plaintiffs have given the family geneology in the plaint. The plaintiffs filed Misc. Application No. 14 of 1968 for getting possession of these lands under Section 83 of the Transfer of Property Act and deposited the mortgage amount. The defendants, however, refused to hand Over the possession. The plaintiffs have, therefore, filed this present suit for redemption of the mortgages and for possession of the suit lands. Defendant No. 1, according to the plaintiffs is the grandson of the original mortgagee who is dead. The plaintiffs alleged that the lands are in possession of defendants Nos. 2 to 18 through defendant No. 1. As defendants Nos. 2 to 18 are in possession of the lands, they are impleaded as defendants. On these averments the plaintiffs instituted the present suit for redemption and possession of the mortgaged lands. Defendant No. 1 remained absent and the suit proceeded ex parte against him.

(3.) Defendant No. 8 by his written Statement at Exh. 24 denied the plaintiffs claim. He denied the geneological table given by the plaintiffs in the schedule attached to the plaint. He contended that the plaintiffs were not the heirs of the debtors i.e. the original three mortgagors and that therefore they have no right to redeem the said mortgages. It was further contended that the alleged right of redemption in regard to the third mortgage was not within the limitation. It was pointed out that the area of the land R. S. No. 581 Pot No. 4 was 12 acres and 14 gunthas; that the whole of that land was in his possession; that the land from the three mortgages is 9 acres 6 1/2 gts. The defendant contended that the remaining area of 3 acres 7 1/2 gts. was in his possession as owners. The defendant contended that as this land of 3 acres 7 1/2 gts. was not included in any of the mortgage deeds, the plaintiffs had no right to redeem the same. The defendant alleged that the heirship of original mortgagors Farid, Ashama and Lalbi had come to defendants Nos. 2 and 3 and to the father of defendant No. 4 and to the father of defendants Nos. 5 to 7. It was alleged that they had redeemed the land which was mortgaged by paying the mortgaged amount to original creditor Nakate on 2-2-1946. It was contended that since then the said land is in possession of defendants as owners to the knowledge of the plaintiff. As all the mortgages are already redeemed, the right of redemption is not in existence. The plaintiffs' contention that defendant No. 1 or his ancestors had acknowledged the mortgages described in paragraph 1 (c) of the plaint, i. e. the third mortgage and that therefore the plaintiffs' suit is not barred by limitation in regard to that mortgage was denied. It was then contended that as the suit land is in possession of the defendants for more than 12 years openly and peacefully, he has become owner of the said land by adverse possession also. It was then contended that as the debtors i. e. the mortgagors of the lands and the three mortgages are different, the plaintiffs are not entitled to get the relief of redemption in one suit, even assuming that they are the heirs of the said mortgagors. It was pleaded that the suit is bad for multifariousness. As the points based on some other contentions are not pressed, it is not necessary to refer to other averments in the written statement.