(1.) DEFENDANT -Raja Ram having lost in both the Courts below has filed this second appeal. Suit was filed by Massa Devi-plaintiff since deceased and represented by her legal representatives.
(2.) ADMITTEDLY defendant mortgaged the suit land with plaintiff for Rs.5300/- vide mortgage dated 27.08.1976. Plaintiff alleged that defendant was not owner of the suit land at the time of mortgage. Parkasho Devi was true owner of the suit land. She sold it to Chanan Singh etc. by two sale deeds. The said vendees dispossessed the plaintiff from the suit land. Accordingly, the plaintiff filed suit for recovery of mortgage money of Rs.5300/-
(3.) BOTH the Courts below have decreed the plaintiff's suit for recovery of Rs.5300/-. Feeling aggrieved, defendant has filed this second appeal. I have heard counsel for the parties and perused the case file. Counsel for the appellant contended that the defendant- appellant had put the plaintiff in possession of the suit land and therefore, the plaintiff is liable to restore possession of the suit land to the defendant. However, the contention cannot be accepted because no such plea was even raised by the defendant in the written statement. On the contrary, the defendant was not owner of the suit land at the time of mortgage. He subsequently filed suit on 10.08.1980 for specific performance of agreement to sell the suit land which was decreed on 01.08.1982. However, there is no evidence to depict that any sale deed was executed in favour of the defendant pursuant to the said decree dated 01.08.1982. Thus the defendant was not owner of the suit land at the time of mortgage on 27.08.1976 and is also not proved to be its owner at subsequent stage.