JAMA MITHU Vs. KHALIL MOHINUDDIN

JUDGEMENT

(1.) APPELLANT/defendant No. 1 has filed this Second Appeal against the judgment and decree dated 28-1-2006 passed by II Additional District Judge, mandsaur in Civil Regular Appeal No. 42-A/05, reversing the judgment and decree dated 4-4-2005 passed by Civil Judge, Class II, Mandsaur in Civil Suit no. 277-A/02.

(2.) THIS second appeal was admitted on 15-2-2008 on following substantial questions of law:-

(3.) BRIEFLY stated, the plaintiff-respondent No. 1 Khalil filed a suit against the appellant No. 1 for redemption of land bearing Survey No. old 82, new No. 350, 0. 4 hectare situated at Village Bajkhedi, Tehsil Mandsaur. It was averred by the plaintiff that his father Mohinuddin had mortgaged the said land by an agreement dated 10-12-1980 for Rs. 1300/- with the appellant/defendant no. 1. As per the terms of the said agreement dated 10-12-1980 the plaintiffs father Mohinuddin was to return the said amount to the defendant No. 1 within four years and the defendant No. 1 was not required to act upon the sale deed dated 10-7-1980 executed in respect of the said land by Mohinuddin in his favour. According to the plaintiff prior to the death of his father, his father mohinuddin had filed a suit against the defendant No. 1 but the same was dismissed for non-appearance of the plaintiff. He stated that on 3-10-2002 he offered Rs. 1300/- to the defendant No. 1 appellant and requested to the appellant defendant No. 1 for release of the mortgaged land but the appellant defendant No. 1 refused to release the said land and deliver its possession. In the circumstances he had to file the suit claiming redemption of the mortgage and possession of the suit land.