SHREE NARAYAN OJHA Vs. FULSAWARO DEVI

JUDGEMENT

(1.) THE defendants have filed this appeal against the Judgment and Decree dated 28.08.1990 passed by the learned Ist Addl. District Judge, Muzaffarpur in title appeal No.149 of 1961 whereby the learned lower appellate Court allowed the appeal and set aside the Judgment and Decree of the trial Court dated 11.08.1961 passed by the learned Munsif, IInd Court Muzaffarpur in redemption Suit No.80 of 1959.

(2.) ORIGINALLY , the plaintiff had filed the aforesaid redemption suit against the defendant which was dismissed by the trial Court. Against the said Judgment of the trial Court, title appeal was filed before the lower appellate Court. During the pendency of the said title appeal, amendment application was filed and a relief was sought for declaration of title and recovery of possession with respect to Schedule I property and further for a decree for partition regarding Schedule II property if it is found that the properties has not been partitioned. The said amendment was allowed by the lower appellate Court. The defendant filed civil revision No.1181 of 1961 before the High Court which was dismissed. Thereafter, the title appeal was heard and the Judgment of the trial Court was set side and the mater was remanded to the trial Court. Revision was filed before the High Court by the defendant. The High Court set aside the remand order and the lower appellate Court was directed to hear the appeal afresh and pass a fresh Judgment according to law. Ultimately, the appellate Court by Judgment and Decree dated 21st July, 1972 dismissed the title appeal. Against the said Judgment, Second Appeal No.487 of 1972 was filed before the High Court. The High Court set aside the Judgment of the appellate Court and again remanded to the appellate Court for a fresh decision. Thereafter, the impugned Judgment has been passed by the lower appellate Court.

(3.) THE plaintiffs filed the aforesaid suit paying for redemption alleging that original owner Lakshman Kumhar had two son, namely, Dasu Kumhar and Darshan Kumhar. Dasu died leaving behind a widow Sanichari and a daughter Makhani. Likewise Darshan Kumhar died leaving behind his widow Udiya. After death of Lakshman, there was partition between his two son and the suit land fell in the share of Dasu. Bhagwat Ojha the ancestor of the contesting defendant had a daughter Mostt. Gangiya @ Gango who was residing with her father after she became widow so Bhagwat Ojha took the Schedule I land on mortgage from Dasu on 5.9.1916 in the benami name of his daughter Gangiya. On the death of Bhagwat Ojha, the defendant No.1 and 2 being the heirs are coming in possession of the property as mortgagee. On the death of Dasu Kumhar, the property was inherited by his widow Sanichari and after her death Makhni became the owner of the property who sold the property to the plaintiff by registered sale deed dated 14.8.1958 for Rs.898/ -. Out of the consideration amount Rs.45/ - remained with the plaintiff for redeeming usufruct mortgage. The plaintiff deposited the amount according to Section 83 of the Transfer of Property Act but the defendants are not delivering the property to the plaintiff. Subsequently as stated above, during the pendnecy of the appeal, the plaintiff's sought for declaration of title for Schedule I property and for partition of Schedule II property.