SANT RAM Vs. GHASITA RAM

JUDGEMENT

(1.) The suit from which this second appeal has arisen was instituted in the following circumstances, Gharibu since deceased, father of Ghastia Ram, Parkash and Sardari defendants mortgaged one half of a house and haveli with possession in favour of Missar Mulraj defendant for Rs. 826/4/- by a registered deed dated the 25th of June, 1928 but the mortgagor was allowed to remain in occupation of the mortgaged property under a rent deed executed by him the same day in favour of Missar Mulraj for a period of one year. Apparently Gharibu remained in possession even after one year and it is alleged that on the 31st of March, 1935 he executed another rent deed for a period of one year from the 12th Har Sambat 1992 to the 11th Har Sambut 1993 corresponding to the 26th of June, 1935 to the 24th June, 1936. Thereafter Gharibu apparently remained in possession until he died and, thereafter, his sons remained.

(2.) On the 2nd of April, 1943 Missar Mulraj sold his mortgagee rights to Sant Ram Plaintiff for Rs. 926/4/- by a registered deed in which one of the conditions was that Missar Mulraj would be responsible for the return of the consideration in case of defect in his title of obstruction in securing possession of the property, and in lieu of delivering possession he also executed a rent deed in favour of Sant Ram. Thereafter, Sant Ram filed an ejectment suit against Missar Mulraj and the sons of Gharibu and also claimed arrears of rent, but this suit was dismissed on the 8th of March, 1948 on the finding that no relationship of landlord and tenant existed between Sant Ram and Missar Mulraj. Sant Ram then instituted the present suit on the 12th of June, 1948 in which he claimed possession of one half of the house and haveli on the basis of title as mortgagee with possession, and he also claimed Rs. 358/13/- as interest by way of damages from Missar Mulraj from the 2nd of April, 1943 to the date of the suit. In the alternative he claimed to recover Rs. 1285/1/- from Missar Mulraj as being the purchase price of the mortgagee rights together with the same amount as interest.

(3.) The suit was contested by all the defendants on every possible point, both the original mortgagee in favour of Missar Mulraj by the father of defendants 2 to 4 and the sale by Missar Mulraj of his mortgagee rights in favour of the plaintiff being denied. The sons of Gharibu also claimed that the property was joint family property and that the mortgagee was without consideration and necessity, and that the debt was raised for immoral purposes. The plea of limitation was also raised.