RAM CHANDER Vs. PRABHU DAYAL

JUDGEMENT

(1.) This second appeal has arisen in the following circumstances. The shop in suit originally belonged to Chhote Lal, the brother of the grandfather of Prabhu Dayal plaintiff and of the father of Gujar Mal defendant No. 1; Chhote Lal mortgaged a shop on the 8th of February, 1908 for Rs. 300/- in favour of one Ganga Sahai, the ancestor of Shambhu Dial defendant No. 2. Long after Chhote Lal had died without leaving any issue, Gujar Mal defendant redeemed the shop on the 20th of July, 1934 and a few days later, on the 30th of July, 1934, he purported to sell the shop for Rs. 700/- to his own son Ram Chander the present appellant.

(2.) The present suit was instituted by Prabhu Dayal on the 18th of August, 1946 claiming possession by redemption of one half of the shop on payment of Rs. 150/- on the ground that after the death of Chhote Lal he became owner co-mortgagor of one half of the shop.

(3.) The suit was contested by Gujar Mal and Ram Chander who pleaded that as the mortgage had been redeemed it no longer subsisted and, therefore, the suit for possession by redemption did not lie, and also alleged that a partition had taken place between Prabhu Dayal and Gujar Mal by which the shop in dispute had fallen to the share of Gujar Mal who had sold it to Ram Chander. It also alleged that Mst. Ramon, the widow of Chhote Mal, had redeemed the mortgage before the plaintiff and Gujar Mal succeeded. Finally it was pleaded that Ram Chander had effected improvements to the extent of Rs. 2,000/- and that the suit was barred by time. On the pleadings of the parties the trial Court framed the issues :