SHATRUGHAN PRASAD PANDEY Vs. GOURI SHANKAR PRASAD

JUDGEMENT

(1.) HEARD learned counsel for the parties. The petitioner is plaintiff of Mortgage Suit No. 22/2001, which he had filed for a decree for redemption of mortgage vide deed dated 15.2.1991 and also for receiving the mortgage money of Rs. 21,000/ - from the plaintiff for payment to the defendant and also for directing the defendant to produce the said deed of mortgage by conditional sale in the court for making it over to the plaintiff and for delivery of possession etc. with respect to the suit land.

(2.) THE plaintiff -petitioner is aggrieved by order dated 7.1.2005 passed in the aforesaid Mortgage Suit No. 22/2001, by which the learned Munsif -II, Madhubani rejected the plaintiffs petition for making the said suit analogous to Mortgage Suit No. 23/2001.

(3.) ON the other hand, learned counsel for the opposite party vehemently opposed the contention of the learned counsel for the petitioner and submitted that defendants of both the suits came in possession of the respective portions of land separately after the mortgages, which fact is admitted by the plaintiff. He further contended that issues in both the suits are completely different as in the instant mortgage suit (22/2001) the defendant -opposite party, who is the husband, has claimed in his written statement that he purchased the entire land of both the deeds, one in his own name and the other in the name of his wife but the amount was paid by him only, hence he is the owner of lands of both the suits, whereas his wife being a Benamidar is not the owner of the other suit land. He further claimed that the deeds in question are not mortgage deeds and they are deeds of absolute sale. He also stated that in her written statement filed in Mortgage Suit No. 23/2001 the wife, who is the sole defendant in that suit, has not raised any claim with respect to the suit land and has said that everything was done by her husband as money was given, purchase was made and possession was taken by him in his own right and she has got no right, title, interest or possession over the lands of that suit.