MAHABIR SINGH Vs. RAMESHWAR SINGH

JUDGEMENT

(1.) The defendants in the action are the appellants here having directed this appeal against a judgment of reversal.

(2.) The respondents instituted the suit for redemption of a usufructuary mortgage dated 9-11-33 for a consideration of Rs. 180 only with regard to 2.25 acres out of plot No. 1728 appertaining to khata No. 788. Admittedly the plaintiffs respondents' predecessors in interest had a holding comprising khata No. 788 consisting of plot Nos. 1727, 1728 and 2796, the entire measuring 3.46 acres. Out of this area, as stated earlier, 2.25 acres out of plot No. 1728 were mortgaged by the plaintiffs' predecessors in interest in favour of the defendant appellants' family. The plaintiffs' case simply stated is that they approached the appellants to redeem the mortgage by accepting the mortgage dues which the latter declined. As a result, the plaintiffs tendered the money in court in accordance with the provisions of Section 83 of the Transfer of Property Act. The appellants not having redeemed the mortgage, the suit has been instituted.

(3.) The defence of the appellants was three-fold- (i) That shortly after the transaction of mortgage it was redeemed on payment. This defence has not been accepted by final court of fact. (ii) That the mortgagors defaulted in the payment of rent as a result of which a rent suit was instituted and a decree thereon obtained by the landlords of the tauzi. After the rent decree the landlords purchased the holding in execution of the rent decree and came in actual physical possession of the same. Subsequently they settled the land in favour of the appellants and the appellants came in possession as settlee. The equity of redemption was lost and the mortgage extinguished. (iii) That the appellants have been coming in possession openly and adversely for more than the statutory period to the knowledge of the respondents, thereby acquiring a right of prescription.