GAURI SHANKAR SINGH Vs. JADU GOPE

JUDGEMENT

(1.) This appeal by defendants 1 and 2 arises out of a suit for redemption of a mortgage bond dated the 9th Phagun, 1307 fasli, in respect of 1.62 acres of khata No. 86 in village Sherpura. The plaintiffs wanted a decree for possession after redemption and mesne profits from ist of Asarh, 1357 fasli, till recovery of possession.

(2.) According to the genealogical table given in the plaint, Ganesh Bhagat had two sons, Chin-taman Bhagat and Lokha Gope. Cnintaman had three sons and one of them was Tulsi Bhagat. Lokha Gope had three sons, Ramnath, Deochand and Ramsaran. Ramnath's son was Chhedi Gope and Chhedi left two sons, Ruplal Gope and Shishu-pal Gope (defendant 3 and father of defendant 4). Deochand Gope had three sons, Mahabir Gope, Durga Gope and Jadu Gope (plaintiff 1). Plaintiffs 2 to 4 are sons of Mahabir Gope, plaintiffs 5 and 6 are sons of Durga Gope, whereas plaintiff 7 is not of plaintiff 1. Ramsaran had a son whose name also was Chhedi Gope. 1.62 acres of khata 86 in village Sherpura, described in Schedule 'B' of the plaint, belonged to the joint family of Tulsi Bhagat and the ancestors of plaintiffs and defendants 3 and 4. On 9th Phagun, 1307 fasli, Tulsi Bhagat, as karta of the joint family, gave this land in mortgage to Jhakhuri Upadheya for a sum of Rs. 55/- only. On 18-6-1907, Jhakuri transferred the mortgagee's interest to Gokhul Singh, father of defendants 1 and 2, by a registered deed. Shortly afterwards, there was a partition among the members of the joint family of Tulsi Bhagat and the ancestors of the plaintiffs and those of pro forma defendants 3 and 4 and the lands described in Schedule 'B' of the plaint fell to the share of the ancestors of the plaintiffs and pro forma defendants 3 and 4. Plaintiffs' share therein was 2/3rd, whereas that of defendants 3 and 4, 1/3rd. Defendants 1 and 2 were in possession of these lands as mortgagees and the plaintiffs were entitled to get back these lands on redemption of the said bond. Plaintiffs requested defendants 1 and a several times to accept the mortgage dues and deliver possession of the lands, but they paid no heed to it. Defendants 3 and 4 were colluding with defendants 1 and 2 and they were not willing to contribute their share of the mortgage dues. The plaintiffs ultimately deposited the mortgage dues under Section 83 of the Transfer of Property Act in Miscellaneous Case No. 207 of 1950 and the notices of the deposit were served on defendants 1 and 2. Defendants 3 and 4 also were made parties in that miscellaneous case. The amount was still lying in deposit, but defendants 1 and 2 did opt make over possession to the plaintiffs on account of which they were liable for mesne profits from 1st of Asarh, 1357 fasli. On these allegations, the plaintiffs instituted the suit for redemption and other reliefs, as indicated above.

(3.) Defendants 1 and 2 contested the suit on grounds, inter alia, that the plaintiffs had no right to redeem the said bond, inasmuch as Chhedi Gope, ancestor of defendants 3 and 4, had transferred the lands to their father Gokhul by a registered sale-deed dated 5-12-1921 and Chhedi had full rights to transfer, inasmuch as those lands had fallen to his share by a partition in his family. The plaintiffs had no share in the lands in suit after the allotment of the same in the share of Chhedi Gope. Gokhul had acquired full rights of ownership in respect of the lands in suit and they were no longer mortgagees. They had no knowledge of the deposit made in the miscellaneous case and notices were not served on them. They" denied plaintiffs' right to get either possession or mesne profits. There was no additional written statement by them, in which they claimed right to these lands by adverse possession.