PIRTHI AND ORS. Vs. DAYA KISHAN AND ANR.

JUDGEMENT

(1.) This is a plaintiffs' appeal. It has been directed against the judgment and decree dated 11.10.1982, whereby the first appellate court, after setting aside the judgment and decree of the trial court, has dismissed the suit of the plaintiffs for declaring them absolute owners of the suit land measuring 8 Kanals 12 Marlas.

(2.) Most of the facts of the case leading to the filing of this appeal are undisputed. The suit land was owned by defendant No. 1 Daya Kishan. He mortgaged the land with possession in favour of the plaintiffs vide registered mortgage deed dated 4.7.1972 (Ex. P6) for a consideration of Rs. 9,000/ -. The mortgage deed contained a stipulation that the mortgaged amount will not carry any interest and the mortgagee was entitled to enjoy the fruits of the property. It also contained a stipulation that the mortgaged amount shall be paid within one year and the land shall be redeemed accordingly, failing which it will not be permissible for mortgagor to redeem the land and the mortgagee will become owner and will be entitled to take out appropriate proceedings in Court for foreclosure. Undisputedly, the mortgage debt was not discharged by defendant No. 1 within the stipulated period of one year. He rather further mortgaged the suit land in favour of Zile Singh -defendant No. 2.

(3.) On 20.8.1973, the plaintiffs served a notice of demand upon defendant No. 1 Daya Kishan requiring him to pay the mortgage debt within 15 days from the date of receipt of the notice. When in spite of the alleged notice, the mortgage debt was not paid, the plaintiffs initiated the foreclosure proceedings by filing application dated 20.10.1973 (Ex. P4) in the Court of District Judge, Rohtak, under Sec. 8 of the Bengal Regulation Act XVII of 1806 (hereinafter referred to as 'the Bengal Regulation'), by pleading that the mortgagee was issued a notice of demand on 20.8.1973 and in spite of the expiry of the prescribed period of 15 days, he has not redeemed the mortgage. It was also pleaded that the aforesaid notice of demand dated 20.8.1973 was refused by the mortgagor. In pursuance of the said application, a Parwana/notice dated 19.3.1978 (Ex. P7) was purported to have been issued by the District Judge, contemplating that the mortgage should tender the mortgage amount together with such interest as may be due thereon within one year from the date of receipt of the said Parwana/notice, failing which the mortgage will foreclose and the conditional sale will become conclusive. It was the case of the plaintiffs that in spite of the said Parwana/notice issued by the District Judge in the foreclosure proceedings under the Bengal Regulation, the defendant mortgagor did not pay the mortgage debt within the stipulated period of one year. Hence, on 28.9.1980* plaintiffs filed the instant suit for declaration that they have become absolute owners of the suit land and the further mortgage of the suit land by defendant No. 1 in favour of defendant No. 2 is illegal and ineffective qua them.