REHMAN Vs. NATHULAL

JUDGEMENT

(1.) THE plaintiffs have preferred this appeal against the decision of the Civil and Additional Sessions Judge of Baran.

(2.) THEY instituted a suit for declaration of owner-ship of a mango tree situated near the well of the defendant, and for recovery of a sum of Rs. 85/- from the defendant on account of the value of the mango crops removed by him, and also a sum of Rs. 175/-lying in deposit in the Tehsil office on account of the mango crops sold by the defendant. The plaintiffs alleged that originally the defendant and his brother Gopia, since dead, had mortgaged the tree for Rs. 70/- under a mortgage deed (Ex. 1) dated Magh Sudi 7 Svt. 1993. Later they borrowed another sum of Rs. 10/- and executed another document by way of mortgage on Baishakh Sudi 2, Svt. 1994 for a sum of Rs. 80/ -. A further sum of Rs. 20 - was again taken by the defendant and his brother mortgaging the mango tree again for Rs. 100 - on Shravan Badi 5, Svt. 1994. Thereafter Gopia, the other brother, died, and then it is alleged that the defendant Nathulal took a further sum of Rs. 30/- from the plaintiffs, and sold the tree in question on 13th of May, 1939, for a sum of Rs. 130/ -. The plaintiffs claimed that they continued to be in possession of the tree as owners after the sale in question, and enjoyed the fruits thereof until 16th January, 1951, when the defendant with a dishonest intent removed the crop from the mango tree and cut away two branches thereof. The plaintiffs estimated the value of the fruits at Rs. 30/ and that of the branches at Rs. 55/ -. THEY alleged that they started prosecution against the defendant for committing theft and causing damage to the tree in question, but the complaint was dismissed. During the pendency of the litigation it is said that the mango crop in 1951 was sold for Rs. 125/- by auction, and the sale proceeds amounting to Rs. 175/- are still lying in deposit in the Tehsil office. Accordingly the plaintiffs prayed for the reliefs aforesaid.