KARAM CHAND MOOLA RAM Vs. TELU RAM

JUDGEMENT

(1.) THIS second appeal is directed against the concurrent decisions of the Courts below decreeing the plaintiffs' suit.

(2.) THE plaintiffs are Telu Ram and Daya Ram. There are 20 defendants in number. Defendants 1 to 4 are Manak Chand, Hem Chand, Subash Chand and Deepak kumar, sons of Sri Chand. The plaintiffs and defendants 1 to 4 were the co-sharers in properties, including the suit property, for facility of reference, hereinafter mentioned as Unit No. I and Unit No. II. In Unit No. I, the plaintiffs and defendants had equal share and in Unit No. II, the plaintiffs had one-third share and the defendants two-thirds share. The plaintiffs effected two mortgages in 1943 in September and December in favour of Mst. Sunhari Devi, who is the predecessor-in-interest of defendants 1 to 4. In September, 1948, a third mortgage was executed whereby the first two mortgages were discharged. However, the terms of all tile three mortgages are similar. The rent of the properties mortgaged was to counter-balance the interest. The defendant-mortgagees, who were also co-sharers of the properties, had in ducted defendants 5 to 20 as tenants in these two units; and at the time of 1948 mortgage, the defendants 5 to 20 were in possession of these two units as tenants under the mortgagees. As a result of the suit between the plain tiffs and defendants 1 to 4 for partition of the properties including the mortgaged properties, the properties were divided by metes and bounds. The properties in dispute fall to the share of the plaintiffs subject to the mortgage in favour of the defendants. The defendants then brought a suit for sale of the mortgaged property. A preliminary decree was passed and, thereafter, a final decree. In execution of the final decree, a part of the mortgaged property was sold. But before the other part could be sold, the plaintiffs paid the balance of the decretal amount in Court with the result that the remaining part of the mortgaged property was not sold; and the final decree for tale of the mortgaged property was fully satisfied.

(3.) ON the 5th of January, 1963, the present suit for possession by redemption has been filed by the plaintiffs. They have impleaded the erstwhile mortgagees as defendants 1 to 4 and the tenants of the disputed properties as defendants 5 to 20. The erstwhile mortgagees confessed judgment. The tenants only contested the suit. Various pleas were raised by the tenants; but one of the pleas was that the present suit was not maintainable, or, in other words, that the suit did not lie in the present form. This issue was decided by both the Courts below against the defendants. Before the trial Court, the objection precisely was that the mortgage debt had been paid in full and that the plaintiffs, therefore, could not bring a suit for redemption; but could only bring a suit for recovery of possession. It appears that this matter was not agitated in the lower appellate Court. The defendants 5 to 20, who are dissatisfied with the decision of the Courts below, have come up in second appeal.