DEOLALL SAH Vs. SHEONANDAN SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal against a judgment of reversal. The suit was instituted by the plaintiff for two reliefs in the alternative, namely, for recovery of the mortgage money on the ground of dispossession or for being restored to possession over the mortgaged property.

(2.) The mortgage bond (Ext. 1) was executed by Tilak Singh, the ancestor of the defendants on the 28th May, 1951, as security for a loan of Rs. 600/- advanced by the plaintiff, the property given in mortgage being an area of 12 kathas comprised in plot No. 359 appertaining to Khata No. 6 in village Shankarpur Aima. On the same date, namely, the 28th May, 1951, Tilak Singh had executed a Kabuliat in the nature of a lease back for retaining possession over the mortgaged property and agreeing to pay to the mortgagee a sum of Rs. 54/- per year by way of rent.

(3.) It is not in dispute before me that the rent as per the Kabuliat (Ext, 2) was paid to the mortgagee up to 1957 and the finding of the court below is that there was default in the payment of the rent upto 1958 whereupon the plaintiff gave a notice to the defendants to put him in possession and since that was not complied with the present suit was instituted in 1960 initially as a suit for recovery of the mortgage dues; but subsequently an alternative prayer was added for recovery of possession over the mortgage security.