FATMA BAI Vs. YOGENDRA SHARMA S/O CHITRAVATI

JUDGEMENT

(1.) Feeling aggrieved by the judgment and decree dated 01.12.1995 passed by learned First Additional Judge to the Court of District Judge, Bhopal in Civil Suit No.66-A/1984 whereby the suit of plaintiff Fatma Bai has been dismissed, she has preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908. It would be relevant to mention that original plaintiff Smt. Fatma Bai has died during pendency of this appeal and the present appellants are her L.Rs. Similarly, first defendant Chitravati Sharma has also died and her L.R Yogendra Sharma is on record. Her another L.R Parmeshwari Vallabh Sharma, defendant No.2 is already on record as respondent No.2. For convenience, in this judgment wherever the term 'plaintiff' is written, it would mean Smt. Fatma Bai and wherever the term 'defendants' is written it would mean first defendant Smt. Chitravati and second defendant Smt. Permeshwari Ballabh Sharma.

(2.) Today is the auspicious day because the first appeal which was filed on 16.04.1996 (i.e. more than 16 years ago) is being decided and a civil suit which was filed on 20.09.1984 near about 29 years (near about 3 decades) ago, is being decided.

(3.) In brief, the suit of plaintiff is that she is the owner of the house in question which is four-storied and the same was mortgaged in the year 1969 to a Firm M/s Narayan Das Bhagwan Das Agarwal for Rs. 20,000/- and because the plaintiff was in need of money to get the suit house redeemed, she requested second defendant who was her tenant to give a loan of Rs. 50,000/- which he readily accepted. Since the upper portion of the disputed house was vacant, it was settled between the plaintiff and defendant No.2 that plaintiff will induct defendant No.2 as tenant on the upper floor and he (defendant No.2) would provide loan of Rs. 50,000/- at the rate of '1.50 paise per month but the interest will not be received by the defendant and the plaintiff will also not receive any rent from him. Further it has been pleaded by the plaintiff that it was also agreed between the parties that whenever the plaintiff returns a sum of Rs. 50,000/- to defendant No.2, the suit house shall be redeemed. The defendant No.2 was not in occupation of money-lending business as a result of which a document of sale-deed was written on 15.6.1971 because during those days there was no practice to execute a mortgage deed and instead of writing a deed of mortgage, document of sale deed used to be executed as a result of which she executed document of mortgage by labelling it to be a sale deed and on the same day i.e. 15.6.1971, a rent-note was also executed between the parties. It is further pleaded in the plaint that when the plaintiff was going for pilgrimage (Haj) she offered Rs. 50,000/- to defendant No.2 who did not accept that amount and after coming back from Haj whenever she tried to offer the mortgage money Rs. 50,000/- to him, second defendant avoided to accept the same.