KUNDA SINGH Vs. RANGI RAM

JUDGEMENT

(1.) This appeal arises out of a suit for redemption. The Plaintiff's case was that he mortgaged the house in suit to Sadhu Ram Defendant for Rs. 400 on 25th Magh 1991 that he delivered the possession to him and that he was entitled to get back the house from the mortgagee on payment of the mortgage money. Kundha Singh Defendant 2, was impleaded because he was in possession of the house. Sadhu Ram admitted the mortgage as well as the amount for which the mortgage took place, but he contended that he had spent Rs. 200 on the improvements of the house and before the Plaintiff could be allowed to redeem he must pay him this amount in addition to the mortgage money. Kundha Singh's defence was that he was the owner of the house. He further pleaded that he had been in possession adversely to the Plaintiff and Sadhu Ram for more than twelve years and accordingly he had acquired title therein.

(2.) The following two issues were framed by the trial Sub-Judge:

(3.) It may here be pointed out that though it was alleged in the plaint that Kundha Singh was in actual possession of the house, the Plaintiff did not claim any relief against him. On the other hand, the prayer clause of the plaint was to the effect that a decree for redemption be granted to the Plaintiff against Sadhu Ram, Defendant 1 since this was a redemption suit and it was not the Plaintiff's case that Kundha Singh claimed the property through Sadhu Ram mortgagee or he had been let into possession by the latter, Kundha Singh should not have been made a Defendant at all. In any case, the adverse title claimed by him should not have been put in issue. But unfortunately neither Kundha Singh nor Sadhu Ram raised his objection in the Courts below and it was not even urged on Kundha Singh's behalf that if the Plaintiff wanted to have him dispossessed, he should bring a separate suit against him in which the title of the two contesting parties or the adverse possession which appeared to be the main plea of Kundha Singh, could be adjudicated upon. Taking into consideration the form of Issue 2, my impression is that this issue must have been framed at Kundha Singh's instance and he was keen that he should be given an opportunity of substantiating his adverse possession. The trial Sub-Judge found against the Plaintiff on Issue 1 and dismissed the suit. Issue 2 was left undecided. On appeal, the learned District Judge set aside the finding of the trial Court on Issue 1. He decided Issue 2 against Kundha Singh and granted the Plaintiff a decree for possession of the house on the condition that he paid Rs. 400 to Sadhu Ram. Kundha Singh is now the Appellant before me.