BALWANT RAI Vs. GURDAS RAI

JUDGEMENT

(1.) GURDAS Rai defendant-respondent mortgaged his one-half share in Ahata of shop No. 36 situated in the area and abadi of Martin Ganj Mandi, Moga, measuring 4 marlas and 6 Sarsahis. built of pukhta masonry consisting of a kotha, verandah kitchen, bathroom, meani pukhta staircase, baithak, dalan, and courtyard on the lower storey and a chaubara, kitchen and pukhta staircase on the second storey, by means of mortgage-deed dated December 15, 1956, (Exhibit P-1), in favour of balwant Rai, plaintiff-appellant, for a sum of Rs. 3,000/ -. The mortgage was with possession. It is staged in the mortgage-deed that the possession had been delivered to the mortgagee on the spot. A portion of the mortgaged property was given over to Gurdas Rai as a tenant for Rs. 15/- P. M. The mortgage amount was not to carry any interest. The mortgagee could occupy the mortgaged premises himself or lease it out to some other person and enjoy the usufruct thereof Gurdas rai mortgagor could redeem the mortgage at the time of any Nimani by paying the entire mortgage amount, Balwant Rai tried to eject Gurdas Rai from the premises by fling petitions under Section 13 of the East Punjab Urban Rent restriction Act but was unsuccessful. He then filed a suit, out of which the present appeal has arisen, on August 2, 1960, for separate possession of one-half share of the double-storey house which had been mortgaged with him by Gurdas Rai. The defendants to the suit were Gurdas Rai and his brother Jagan Nath, who was the owner of the other half share of the house. The suit was contested by both the defendants and the following issues were framed on October 11, 1960:-1. Is not the suit competent as framed?

(2.) IS not the suit properly valued for the purposes of court-fee and jurisdiction? both these issues were decided against the defendants by the learned trial Court by order dated October 12, 1960, and thereafter the trial of the suit proceeded on the following issues:-1. Is the plaintiff entitled to separate possession of the property in question? 2. Has the property in question been partitioned between the defendants? If so, when and with what effect? 3. Is the property in question impartible and, if so, its effect? 4. Relief.

(3.) THE learned trial Court decided issue No. 1 against the plaintiff-appellant and issues 2 and 3 against the defendant-respondents, with the result that the suit of the appellant was dismissed on December 2, 1960. Against that decree, the present appeal has been filed.