BRAHSPATI KUMAR Vs. SARJU PRASAD

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs challenging the judgment and decree dtd. 24/11/1994 passed by 2nd Additional Judge to the Court of District Judge, Sidhi in Civil Appeal No.136-A/1992 reversing the judgment and decree dtd. 6/7/1982 passed by Civil Judge Class II, Sidhi in Civil Suit No.26-A/1978, whereby learned trial Court decreed the suit, which in appeal filed by legal heirs of original defendant Shalikram, has been dismissed.

(2.) In short the facts are that the plaintiffs/appellants instituted a suit for redemption of mortgage and in alternative for recovery of possession on the basis of title as well as for mesne profits. It is alleged that the land khasra no.213 area 7.83 acre situtated in Village Satohari, Tahsil Gopadbanas, was owned and possessed by Ganeshram, who died in the year, 1960 leaving behind him, his son Chandramani Prasad, who being in need of money mortagaged the land for consideration of Rs.150.00 in the year, 1952 by executing unregistered mortgage deed with the assurance that upon refund of Rs.150.00, defendant's father Mahaveer Ram shall hand over possession to Chandramani Prasad, who died issueless in the year, 1969 leaving behind him only successor, his wife Mst. Mundi. It is alleged that Chandramani Prasad was uncle of plaintiffs and after death of Chandramani Prasad in the year 1969, his wife Mst. Mundi started residing with the plaintiffs, who were taking care of Mst. Mundi. Due to this reason, Mst. Mundi executed a registered Will in favour of plaintiffs on 13/2/1975, on the basis of which name of plaintiffs was mutuated over the land in question vide order dtd. 20/9/1977. It is also alleged that due to poverty, Chandramani Prasad could not repay the amount of Rs.150.00and thereafter, Mst. Mundi also could not pay the amount of mortgage and she died on 2/12/1975 after executing registered Will, therefore, plaintiffs are entitled for redemption of mortgage and for restoration of possession on the basis of title. It is alleged that when in the Month of June, 1977 plaintiffs demanded possession from the defendant after making payment of Rs.150.00, then defendant contended that the land was sold to his father by Chandramani Prasad and refused to handover possession, whereas the land was never sold to defendant's father. It is alleged that on the basis of unregistered mortgage deed, defendant's father or defendant does not get any right and he had also got mutuated his name on the basis of alleged sale of land, which is illegal and ineffective. It is alleged that the defendant does not get any right on the basis of unregistered sale deed and the plaintiffs are entitled for possession on the basis of title also. On inter alia allegations the suit was filed.

(3.) Defendant appeared and filed written statement denying the plaint allegations, although admitted execution of mortgage deed in Samvat 2009 for consideration of Rs.150.00. It is contended that Chandramani Prasad died 7 years ago but his wife did not reside with the plaintiffs and no document was executed by her in favour of the plaintiffs, who got mutuated their name wrongly and upon getting knowledge, he preferred an appeal before the S.D.O. Chandramani Prasad has also executed unregistered sale deed on 8/3/1957 in favour of father of defandant and after execution of sale deed, there is no question of redemption of mortgage. Denying title of the plaintiffs, it is contended that they have no right to file the suit either for redemption of mortgage or for restoration of possession, because on the basis of sale deed, name of defendant is already there in the revenue record. It is contended that no cause of action has arisen to the plaintiffs. On inter alia contentions, the suit was prayed to be dismissed.