JEET RAM Vs. GANGA PHAL

JUDGEMENT

(1.) The present second appeal has been filed against the judgment and decree dated 31.8.1981 passed by the Ist Appellate Court/District Judge, Faridabad.

(2.) The brief facts of the present case are that plaintiffs/respondents filed a suit with the allegation that plaintiff was the owner in possession of the suit property. Plaintiff No.1 entered into the oral mortgage with the defendant/appellant in the year 1972-73 for Rs.21,244/- and possession of the property was transferred to the mortgagee i.e. defendant/appellant. However, during the mortgage, plaintiff No.1 has transferred 2/3rd share in the land in favour of plaintiffs No.2 and 2 in equal share. Hence, now plaintiffs No.1 to 3 are owner in equal share. It has been further stated by the plaintiffs that they have paid Rs.21,244/- to the defendant on 20.6.1975, to redeem the mortgage. Having received the amount of Rs.21,244/- defendant has issued the receipt for the payment of the mortgage amount. Hence, mortgage stood redeemed. Entries in Khasra Girdawari were also changed in favour of plaintiffs No.1 to 3 in the year 1975. By amending the plaint, plaintiff has pleaded that since plaintiffs are otherwise owner of the property in suit, hence, they are entitled for the possession from the defendant. Defendant denied the receipt of the mortgage amount and redemption of the land.

(3.) Learned trial Court dismissed the suit of the plaintiffs saying payment of the mortgage amount i.e. Rs.21,244/- is not proved and receipt dated 20.6.1975 is not a genuine document. Feeling aggrieved from the dismissal of the suit by the learned trial Court vide judgment and decree dated 25.7.1980, plaintiffs preferred a first appeal in the District Court, Faridabad which was allowed by the District Judge vide impugned judgment dated 31.8.1981. While allowing the first appeal filed by the plaintiffs (herein respondents), learned District Judge has placed reliance on the judgment of the Hon'ble Apex Court in the matter of Kolathoor Variath and another vs. Pairaprakottoth Cheriya K. Haji, 1974 AIR(SC) 689. Learned first Appellate Court has observed that even after mortgage is not proved, plaintiffs are entitled for relief on the basis of title which is not in dispute. Feeling aggrieved from the judgment passed by the first Appellate Court, second appeal is preferred under Section 100 of the Code of Civil Procedure.