SHANKAR LAL KALU Vs. NANDLAL GENDALAL AND ORS.

JUDGEMENT

(1.) THOUGH the parties in these appeals are different, the same common question of law arises in both of them and hence it be convenient to dispose them of by one common judgment.

(2.) THE material facts in these two appear are as follows: Appeal No. 29 of 1949 arises of a suit for redemption of a possessory mortgage created by Shankarlal (Appellant) in favour the Respondent's father Gendalal on 19 -4 -1926. The property mortgaged was an agricultural holding whereof Shankarlal was a tenant under a (sic) from the Jagirdar. Among other pleas it was contended on behalf of the mortgagee that period of Shankarlal's Patta had expired and, Jagirdar thereupon granted a fresh Patta original mortgagee Gendalal and that according Shankarlal had no right to maintain a suit redemption. In reply to this plea it was contended on behalf of the mortgagor that the (sic) obtained by the mortgagee must in law be deed to be a renewal of the lease for the benefit of the original tenant. The learned Addition Munsif before whom the case came up for sideration gave effect to the Defendant's plea dismissed Shankarlal's suit.

(3.) AN appeal was preferred in each of these cases against the decision of the trial Court, in one by Shankarlal whose suit, had been dismissed in the other by Poonaji the mortgagee, both these appeals came up for consideration before Mr. A.P. Tayal, Additional District Judge indore. It appears to have been contended before him on behalf of the mortgagees that on the leadings as they stood in the two suits the Courts below should not have allowed the mortgagors to raise the plea that the fresh Patta obtained by the mortgagee in each case accrued for the benefit of the original tenant. This contention found favour with Mr. Tayal who set aside the decrees passed by the Courts below in the two suits and remanded them to the trial Court with to direction that they should be re -entered at their original numbers and disposed of in accordance with the law after the Plaintiff in each of the two cases amended his plaint by pleading specifically that he relied on Section 90, Trusts Act and Section 84. T. P. Act. The two present appeals have been preferred by Shankarlal and Deokishan respectively against the remand order passed by Mr. Tayal.