SUKHDEO GOSWAMI Vs. OM PRAKASH SAO & ORS

JUDGEMENT

(1.) (C.A.V.) - The defendant-appellant-appellant has filed the present second appeal against the judgment and decree dated 28.08.2008 passed by the learned Additional District Judge, F.T.C. V, Munger in M.T.A. No.23 of 2004 whereby the learned lower appellate court has dismissed the appeal and thereby confirmed the judgment and decree passed by the trial court dated 04.03.2004 passed by Munsif I, Munger in Title Suit No.23 of 1997 decreeing the plaintiff-respondent's suit.

(2.) This second appeal was admitted on 09.07.2009 and the following substantial questions of law were formulated:

(3.) The plaintiffs filed the Title Suit No.23 of 1997 praying for declaration of right and for recovery of her possession alleging that the suit property originally belonged to Punit Goswami and Mangal Goswami who mortgaged the property on 09.06.1958. They continued to reside in the suit premises on monthly rent of Rs.15.00. However, subsequently they redeemed the mortgage by depositing the money under Sec. 83 T.P. Act in Misc. Case No.56 of 1962. Because they had not paid the rent, the plaintiff filed Money Suit No.115 of 1962 which was decreed and execution Case No.87 of 1965 was filed by the plaintiff. In the execution case, the suit property was attached and auction sold which was purchased by the plaintiff. The defendant Nos. 1 and 2 filed application under Order 21, Rule 58 C.P.C. being Misc. Case No.1 of 1965 which was dismissed for default and the restoration application i.e. Misc. No.73 of 1966 was also dismissed. Then the defendants filed Title Suit No.106 of 1966 for setting aside attachment and sale which was also dismissed on 23.08.1971. Title Appeal No.48 of 1971 was also dismissed on 20.12.1976. The execution case was revived and delivery of possession was effected on 26.08.1979.