DEVI SARAN Vs. ANANT RAM AND ORS.

JUDGEMENT

(1.) The Respondent -Plaintiffs filed a suit for redemption of mortgage with respect to property forming half share of land comprised in khata No. 10 khatauni Nos. 12 and 13, consisting of two parcels each bearing Khasra number 191 min, situated in village Bharayal Pargana Kaimali, Tehsil and District Shimla, together with a doubled storeyed house standing thereupon. This suit was filed against Smt. Malti proforma Respondent No. 3. It was alleged that the suit property had been mortgaged with possession with Smt. Malti by their predecessor, Shri Parsu, through an oral mortgage and the mutation of the same was attested on 16.3.1969 and it was further pleaded that the mortgage money was to the tune of Rs. 1250/ -. According to the Plaintiffs, Smt. Malti had derived more than double the benefit from the said property and therefore, they were entitled to the redemption of the same without payment of anything.

(2.) Smt. Malti initially contested the claim of the Plaintiffs and raised various preliminary objections besides contesting their claim on merit. She pleaded that the house on the property had been constructed by her, after mortgage, by spending a sum of Rs. 8000/ - and it was further averred that she had become the owner of the property by adverse possession. However, later on she made a statement conceding the claim of the Plaintiffs. This statement was made on 23rd May, 1986. She stated that she was prepared to deliver the possession of the property to the Plaintiffs provided they pay to her a sum of Rs. 1250/ -, which was the mortgage money.

(3.) The present Appellant was added as Defendant No. 2 in the original suit when he moved an application under Order 1 Rule 10 of the Code of Civil Procedure before the trial court that he was a tenant in possession of the suit land under the owners and, therefore, he was a necessary party to the suit. The said application was allowed and as a consequence thereof he was impleaded as Defendant No. 2. He put in his written statement wherein he took Various preliminary objections but on merit his case had been that he had been inducted as a tenant by late Shri Parsu Ram and thereafter he developed the suit property and enhanced its value materially by spending a good deal of money. He further alleged that he had been inducted as a tenant prior to the creation of mortgage in favour of Defendant No. 1 and that the possession of the suit property had never been with Defendant No. 1, Smt. Malti. He further pleaded that he could not be evicted because of his tenancy rights, claimed under the mortgagor, on redemption of mortgage even.