RAMESWAR DUBEY Vs. MAHESH CHAND GUPTA AND ORS.

JUDGEMENT

(1.) The appeal under Section 100 CPC is at the instance of appellantdefendant preferred against the judgment and decree dated 02/09/2002 passed by III Additional District Judge, Gwalior in Civil Appeal No.05/2001 whereby lower appellate Court reversed the judgment and decree dated 04/12/2000 passed by the VIII Civil Judge, Class-I, Gwalior in Civil Suit No.162-A/1998. The trial Court dismissed the suit preferred by the plaintiffs/ respondents and thereafter, the appellate Court allowed the appeal preferred by the plaintiffs and suit was decreed therefore, appellant/ defendant has preferred the instant appeal.

(2.) Precisely stated facts of the case for adjudication are that a suit for declaration and for redemption of mortgage was preferred by the plaintiff Keshar Bai w/o Mangal Singh as plaintiff No.1 and Chandan Singh as plaintiff No.2 against the defendant (present appellant) with the submission that husband of plaintiff No.1 Mangal Singh has purchased the suit house with consideration of Rs.3,000/- at Medai Maholla Gwalior vide registered sale deed dated 05/08/1959. After the death of Mangal Singh-plaintiff No.1 being wife and plaintiff No.2 being son became joint owner of the property. Later on, they orally partitioned the property and part belonging to plaintiff No.1 Keshar Bai is denoted in the map appended with the plaint with red mark and the part of the house came in possession of plaintiff No.2 is denoted by green mark.

(3.) As alleged, father of defendant Kishan Chand Dubey entered into suit premise as tenant on 17/03/1969 and after him, present defendant was occupying the part of the house as tenant since 11/05/1976. Because of the bad habits of Chandan Singh being alcoholic, defendant used the opportunity in his favour and on 05/09/1979, it was agreed upon to mortgage the half portion of the house in favour of defendant. As per submissions, on 05/09/1979, defendant/ appellant 1gave Rs.2500/- out of which, Rs.1630/- were given in cash and an agreement to sale has been executed in presence of notary Mr. C.L. Gupta. On 16/10/1979, plaintiff No.2 Chandan Singh executed sale deed in favour of present appellant which according to the plaintiffs was not a sale deed but was a mortgage deed. A separate mortgage deed was also executed on same date i.e. 16/10/1979, in which it has been agreed upon that if plaintiff within five years from 16/10/1979 return back the mortgage amount then possession of the half portion of the house would be given back to the plaintiffs. It was the submission of plaintiff No.1 Keshar Bai that she never put her thumb impression over the sale deed and the said mortgage deed.