JAGAN NATH Vs. BHULIAN

JUDGEMENT

(1.) THIS is defendant's second appeal against whom the suit for possession by way of redemption has been decreed by both the Courts below.

(2.) SHRIMATI Nihali was the owner, in possession, of the shop, in dispute, who mortgaged the same with possession in favour of Badhan Lal, defendant No. 1, for a sum of Rs. 2000/- vide mortgage deed dated January 25, 1926, Exhibit PW4/1. The said Nihali died in year 1934 year leaving behind two daughters, namely, Bhulia and Anguri as her sole heirs who succeeded to her estate. The said Anguri also expired on April 2, 1962 leaving behind Ramesh Kumar alias Ramesh Chand, plaintiff No. 2, as her sole legal heir and thus, the plaintiff being the heir of Nihali stepped into her shoes as a mortgagor of the property, in dispute. As the defendant did not accede to the request for redeeming the property; hence the present suit for redemption. The mortgage defendant No. 1, admitted the factum of the mortgage, the date and the conditions of the mortgagee contained in the mortgage-deed, Exhibit, PW4/1. He also averred that he remained in possession of the shop, in dispute, till 1957 and that in the month of January, 1958, the said shop was let out by him to defendant No. 2 at the rate of Rs. 10/- per month. In this manner, defendant No. 1, claimed as sum of Rs. 6,400/- from the plaintiffs in case of redemption. However, defendant No. 1, denied the factum of the plaintiff being the mortgagors of the shop, in dispute. Defendant No. 2 Jagan Nath contested the suit inter alia on the ground that the plaintiff had no locus standi to file the suit. His claim was that he was the owner of the same and in the alternative, it was contended by him that he had become its owner by adverse possession. It was also contend that he had rented out the same on January 29, 1959, to Daulat Ram, defendant No. 3. The trial Court found that Nihali mortgaged with possession the shop, in dispute, with Budhan Lal, defendant No. 1 vide mortgage deed, Exhibit PW4/1, and that the plaintiff were the only heirs of Nihali and were thus, entitled to get the shop, in dispute, redeemed. The claim of Jagan Nath, defendant was negatived. Ultimately, the plaintiff's suit was decreed on payment of no mortgage amount. Dissatisfied with the same, two separate appeals were filed : one on behalf of Jagan Nath, defendant and other on behalf of the Badhan Lal, defendant-mortgagee. The lower appellate Court, ultimately, accepted the appeal filed on behalf of Badhan La, defendant, and modified the judgment and decree of the trial Court and thus passed a preliminary decree in favour of the plaintiffs and against the defendant with a direction that the plaintiffs shall deposit in Court a sum of Rs. 4,940/. The appeal filed on behalf of Jagan Nath, defendant, was dismissed. Dissatisfied with the same, Jagan Nath defendant, has come up in second appeal to this Court.

(3.) I have hard the learned counsel for the parties and have also gone through the relevant evidence on the record. I do not find any illegality or infirmity in concurrent findings of the two Courts below as to be interfered which the second appeal.