HAQUIK MIAN Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) This is plaintiff's Second Appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for short the Code) in a suit for redemption of mortgage over an area of 11 Bighas, 15 kathas 6 dhurs in Khata No. 388 of village Baleshra Balahata. This khata belongs to Nurul Mian, -an Mohammad Mian, Abdul Aziz, Ahmad Mian and All Hussain Mian. They executed a mortgage on 23-1-1922 in favour of Lala Sital Lal after obtaining Rs. 600/- the mortgage money in respect of an area of 4 Bighas and the possessioon was given to the mortgagee There was another oral mortgage dated 1-41934 in favour of same mortgagee Lala Sital Lal for Rs. 500/- in respect of the remaining area of khata. Sital Lal died and Respondent Nos. 1 to 6 are his heirs. Plaintiffs are the heirs of Abdul Aziz, the mortgagor.

(2.) The amount of mortgage money was sent by mortgagor to the defendants, the mortgagees but they did not accept it rather they asserted the rights of vendees. They further asserted that they are not mortgagees rather a suit for arrears of rent was filed by Malik Hathuaraj and decree was obtained and land in dispute was put to auction sale and the defendants managed that the property to auction sale was purchased by Guru Gokul Dubey and later the defendants purchased the property in suit and came in possession as vendees hence they would not deliver back possession to the plaintiffs as defendants are no longer mortgagees.

(3.) The suit was contested by the defendants alleging that they are on the date of the suit not as mortgagees. Earlier mortgage was created in favour of Lala Sital Lal the predecessor - in - interest of the defendants. The suit for arrears of rent was filed by Malik Hathuaraj and it was decreed exparte. The property was put to auction sale as the arrears of rent could not be paid. Lola Sital Lal purchased the property in the name of Guru Gokul Dubey and thereafter from him defendants came in possession as vendee. The defendants are no longer mortgagees. The suit was time barred and liable to be dismissed.