BALKRISHAN Vs. MOHSIN BHAI

JUDGEMENT

(1.) This Second Appeal, under Section 100 of the Code of Civil Procedure, arises out of the judgment and decree dated 1-9-78 of the Court of Additional District Judge, Neemuch, in Civil First Appeal No. 19-A/75, rendered in affirmance of the judgment and decree dated 8-1-76 passed by the Court of Civil Judge, Class II, Jawad in Civil Suit No. 1-A/69 decreeing suit for the respondent-plaintiffs for redemption of mortgage.

(2.) The dispute relate to agricultural lands bearing Survey Nos. 1817, 1818, 1819, 1820, 1822, 1823, 1824, 1825, 1826, 1827, 1828, 1829, 1830 and 1841; total area 8.163 Hectres, situated at Village Athana, Tehsil Jawad, District Mandsaur. Village Athana was a 'Jagir' village of erstwhile Gwalior State which subsequently stood merged in the State of Madhya Bharat. The lands in suit were held by late Yusuf Ali as tenant of 'Jagirdar'. The lands were mortgaged by late Yusuf Ali by way of usufructuary mortgage with Shankarlal, the father of respondents Nos. 1 to 3 and husband of respondent No. 4, under an unregistered mortgage deed dated 25/6/1929 for a loan of Rs. 392/-. The mortgage was for a fixed term of 9 years and it was agreed that after the expiry of the said period of 9 years, the mortgagor would be entitled to redeem the lands on payment of loan in lump sum. It is not disputed that since 25-6-1929 the lands are in possession of late Shankarlal and after his death the appellants.

(3.) Late Yusuf Ali served a notice on Shankarlal in 1944 seeking redemption of the suit lands. He thereafter filed a suit for redemption under S. 275 of the Qanoon Mal Gwalior in Tehsil Court which, however, dismissed the suit on 31-8-45 on the ground that since the mortgage deed is not registered, the suit is not maintainable under S. 275 of Qanoon Mal Gwalior. Yusuf Ali died in the year 1959 and whereupon names of present respondent -plaintiffs were mutated in village revenue papers in respect of the suit lands notwithstanding the objection raised by late Shankarlal. The plaintiffs again on 27-7-60 served a notice on late Shankarlal which was replied to by the latter on 13-8-60 denying former's claim for redemption on the ground of limitation. Shankarlal also died sometime in the year 1965. The plaintiffs thereafter brought the present suit against the appellant-defendants the heirs of Shankarlal for redemption and possession of the mortgage property. The suit was resisted on various grounds and it was averred that the mortgage in question was illegal for want of registration and no suit for redemption of such an illegal mortgage is maintainable. It was further averred that the defendants have perfected their title to the suit land by adverse possession and that the suit is barred by limitation. The two Courts below have negatived all the pleas raised by the defendants and decreed the suit, thus giving rise to this second appeal.