SATAN SINGH @ SATYA NARAIN SINGH Vs. GULABEHAND SHARMA

JUDGEMENT

(1.) The appellant has filed this appeal being aggrieved and dissatisfied with the judgment and decree dated 10.2.2010/24.2.2010 passed by learned Additional District and Sessions Judge, F.T.C.-I, Gopalganj in Title Appeal Nos. 83 of 1979/193 of 2009, whereby the appellate court below has partly modified the judgment and decree dated 24.2.1979/19.11.1979 passed by learned Additional Munsif, Gopalganj in Title Suit No. 55 of 1971 by dismissing the suit on contest as against the appellants-1(A), (B) & (C) while disposing of the suit on compromise as against the appellant nos. 2 and 3. I shall be referring to the status of the parties as it stood before the trial court.

(2.) The facts of the case briefly stated is that the suit was filed by the plaintiffs for redemption of the mortgage for the suit property bearing khata no. 34, survey no. 23 and khata no. 20, survey no. 39 having an area of 16 kathas 8 dhurs situated in Mauza-Barahara, P.S.-Bhorey, District-Gopalganj. It was the case of the plaintiffs that the landholders by a registered sale deed dated 1.6.1914 had transferred the suit property in favour of Girija Shukla and Aditya Shukla and also handed over possession to them. It was further case of the plaintiffs that Girija Shukla vide registered sale deed dated 5.7.1920 sold the land in favour of Khedu Ahir who in turn sold the suit property in favour of Jado Lohar and Lakshan Lohar on 11.8.1926. It is the plaintiffs' case that Jado Lohar, Raghunandan Lohar and Lakshan Lohar all were sons of Rajnandan Lohar out of whom Lakshan Lohar died issueless. Whereas plaintiff nos. 1 to 3 are sons of Jado Lohar, the plaintiff no. 4 is the son of Raghunandan Lohar. If is further the case of the plaintiff that Lachhan Lohar and Ganesh Lohar had executed a registered jarpeshagi "Baimeyadi Char sala" on 18.5.1954 after receiving Rs. 1,605/- in favour of one Gena Singh, the defendant and also handed over the possession of the suit property to him. It is the plaintiffs case that in terms of the deed a sum of Rs. 972/- of the mortgage money was to be given to one Babu Inderdeo Rai, in lieu of the loan taken by Lachhan Lohar on a hand note and in a similar manner a sum of Rs. 623/- was to be given to him in lieu of the loan taken by Ganesh Lohar on a hand note, while Rs. 10/- was to be paid to the mortgagor. It is further the case of the plaintiffs that it was agreed between the parties that the mortgagor would recover the possession of the mortgaged property after making the payment of the mortgaged amount within the period mentioned in the deed failing which the second party Gena Singh would be at liberty to get a sale deed executed through the process of the court after service of notice and also get his name mutated in the Government records. According to the plaintiffs it was further agreed that Gena Singh would also be entitled for enjoyment of the usufructs of the mortgaged property. It is further the case of the plaintiffs that when the defendant did not make payment of the mortgaged amount to Babu Indradeo Rai then the plaintiffs discharged the loan themselves in terms of the two hand notes. It was further the case of the plaintiffs that before filing the suit, they requested the defendant for redemption of the mortgage and to deliver possession of the mortgaged property to them but the request was refused by the defendant and hence the suit was filed giving rise to Title Suit No. 55 of 1971.

(3.) The trial court by judgment and decree dated 24.9.1979 dismissed the suit. Being aggrieved the plaintiffs filed a Title Appeal bearing Title Appeal Nos. 83 of 1979/193 of 2009 which has been decreed in favour of the plaintiff-appellants by the impugned judgment and decree in this appeal.