HANMANTH REDDY Vs. KAMSALI NAGAMMA

JUDGEMENT

(1.) The defendants are the appellants. The Plaintiff one Nagamma filed the present suit for redumption of mortgage and restoration of possession of the suit land. The case of the plaintiff was that she borrowed an amount of Rs. 2,000/-for meeting the marriage expenses of her daughter from one Pullamgari Rami Reddy under a usufractuary mortgage with a condition that he should enjoy the properties for 20 years in lieu of interest and restore the possession of the same on payment of principal amount. According to her the transaction is a usufructuary mortgage but two separate documents were executed one a simple mortgage and the other a lease on the same day namely, 6-5-1942 as there were some hurdles under the provisions of the Prevention of Alienation of Lands Act which was then in force. After the death of Rami Reddy, the defendants were in possession of the land. When the plaintiff wanted to redeem the mortgage the defendants refused to proceed with the transaction and re-deliver possession saying that Rami Reddy was a tenant of the suit land and was also granted a protected tenancy certificate. The plaintiff thereafter filed an application before the Collector. By order dated 8-10-1964 the Collector dismissed the petition as not maintainable and directed the parties to go to a civil court for a decision on the question whether the transaction is a lease or a usufructuary mortgage. The plaintiff thereafter filed the present suit in the Court of the District Munsif, Alampur for redemption of mortgage and for possession.

(2.) The defendants are the legal heirs of Pullammagari Rami Reddy. They resisted the suit contending that the borrowal of amount under the mortgage deed has nothing to do with the possession of lands, that Rami Reddy was inducted into psssession as a tenant under a lease deed on a yearly rent of Rs. 100/- that out of the said amount the lessee had to pay the land revenue and adjust the balance towards interest, that Rami Reddy was given a protected tenancy certificate under the provisions of the Tenancy Act and after his death they were in possession as his legal heirs. They also contended that the suit is not maintainable in view of the provisions of Section 99 of the Act. They further urged that as per the terms of the mortgage deed, they have become the owners of the property, as the mortgage was not redeemed, at the end of 20 years and that they acquired title by adverse possession. They also raised a plea that the agreement being in contravention of the provisions of the Prevention of Alienations Act no rights can be enforced by the plaintiff under the said agreement.

(3.) The entire documentary evi- dence consists of Exs. A-1 to A-4 on the side of the plaintiff ana Exs. B-1 to B-3 on the side of the defendants. Ex. A-1 is the Kasara Phani for the relevant year which shows that the plaintiff is the pattadar and the defendants are the persons cultivating the lands. Exs. A-2 is the simple mortgage deed and styled as Simple Mortgage and Ex. A-3 is the lease deed. Ex. A-4 is the order of the Collector directing the parties to a civil suit for a decision on the question whether the suit transaction is a usutructuary mortgage or a lease. Ex. B-1 is the revenue record of protected tenancy showing that Kami Reddy was recognised as protected tenant. Exs. B-2 and B-3 corresponds to Exs. A-2 and A-3 the simple mortgage deed and the lease deed. The oral evidence consists of the plaintiff as P. W.-1 and another examined as P W 2 on the side of the plaintiif and the evidence of one witness on the side of the defendants.