GOPAL KRISHAN Vs. ANANDPAL SINGH

JUDGEMENT

(1.) The appellant has preferred the present appeal under Sec. 100 of the Code of Civil Procedure, 1908 (for short "CPC") challenging the judgment dtd. 22/12/2009 passed by the learned Additional District Judge, Sendhwa, District Barwani in Civil Regular Appeal No.19-A/2008 whereby the learned first Appellate Court has dismissed the appeal and affirmed the judgment and decree dtd. 26/9/2008 passed in Civil Suit No.5-A/2002 by the learned Civil Judge, Class-II, Khetiya, District Barwani wherein the learned Civil Judge has dismissed the suit filed by the appellant for redemption of Mortgage (girvi mukti) and for possession of the land in question.

(2.) Succinctly, the facts of the case are that the appellant filed a suit for redemption of mortgage and for possession of the land bearing Survey No.37/1 ad-measuring 1.60 acres, situated at village Pansemal, District-Khargone. As per pleadings, the aforesaid land in question was mortgaged by late one Shivnarayan, the father of the appellant on 17/3/1969 vide a deed named as "Shartiya Frokhtnama" with consideration of Rs.11000.00 in favour of one Janki Devi, the mother of the respondents for a period of five years i.e. up to 17/3/1974. After the lapse of the said period the appellant tried to redeem the mortgage, but the respondent did not give any response, hence, the appellant, on 11/3/2022 served a notice on respondent to accept the sum of Rs.11000.00 and give the possession of the land in question to the appellant. In reply to the said notice issued by the appellant, the respondent, denying the execution of such document, remonstrated that the suit land had never been mortgaged to his mother Janki Devi and it was sold to her. As such, the respondent, being son of late Jankidevi, was the sole owner of the suit property.

(3.) Then, the appellant/plaintiff had filed a Civil Suit bearing Suit No.5-A/2002 for redemption of mortgage and possession of the suit land. the suit was contested on various grounds. In written statements, the respondents have denied all the averments of the appellant and it is contended that no deed of mortgage was executed by Late Shivnarayan, but rather it is a document of sale. Since, appellant is not the sole heir of Late Shivnarayan, he has no locus standi to file the aforesaid civil suit without impleading the other legal heirs of Late Shivnarayan as they are also the necessary parties. The suit is also hopelessly time barred, hence, not maintainable.