VISHWA NATH Vs. SHAKTI RAM

JUDGEMENT

(1.) This Regular Second Appeal is at the instance of the plaintiff. It arises out of a suit for redemption in the following circumstances :- One Smt. Durga Devi, the then owner of the property in dispute, mortgaged the same with one Daulat Ram for a consideration of Rs. 900/- on 23-12-1926. The property mortgaged included a double storeyed shop at the time of creation of the initial mortgage. Shri Daulat Ram, the original mortgagee, subsequently transferred his mortgagee rights in favour of the firm M/s. Udho Mal Shiama Mal by means of a registered sale deed dated 31-3-1928. Smt. Durga Devi brought her suit for possession by redemption of the mortgaged property against the various partners of the firm, Udho Mal Shiama Mal. She, however, died on 20-4-1970 during the pendency of that suit. That suit was ultimately dismissed as abated.

(2.) The plaintiff-appellant who is the sole heir of said Smt. Durga Devi instituted his suit giving rise to this appeal for possession of the mortgaged property by redemption. He claimed possession without payment of any mortgaged money on the ground that the mortgagees had during the subsistence of the mortgage allowed the structure existing on the mortgaged land to fall down by their negligence and as such they were liable to compensate him in that behalf. The plaintiff further claimed that he had his independent right of filing the suit for redemption so long as the mortgage subsisted and the earlier suit filed by Smt. Durga Devi could not stand in his way. The suit, it may be remarked, had been filed against the respondents-defendants under O.1 R.8 CPC with the leave of the Court.

(3.) The suit was contested on behalf of the respondent-defendants and the various pleas raised by them would be apparent from the following issues which were struck by the trial court :-