CHANDAN MAL Vs. GULABI

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit filed by respondent Mst. Gulabi under Order 21, Rule 103, CPC

(2.) THE suit property is situated in village Srinagar; District Ajmer, and more fully described in Schedule 'A' annexed to the plaint. One Godu was the owner of the suit property. Mst. Gulabi is his widow, and one Ramlal is alleged to be his adopted son. Under the registered mortgage deed dated 13 -5 -58 of the suit property, a usufructuory mortgage was created by Mst. Gulabi and Ramlal in favour of one Chandan Mal for a consideration of Rs. 350/ -. Thereafter, Mst. Gulabi was inducted as a tenant by the mortgagee Chandanmal in the suit property. Ramlal, the adopted son of Godu, sold the suit property to Champalal defendant -appellant for a consideration of Rs. 2500/ -under the registered sale deed in August, 1959. Out of the sale consideration, a sum of Rs. 400/ - was left with the appellant for redemption of the property, which, as stated earlier, had been mortgaged with Chandan Mal. Though the case of the appellant was that he had paid to Chandanmal Rs. 400/ - but this payment was disputed and, therefore, the appellant filed a suit for redemption against the mortgagee Chandanmal and possession was also claimed. Later on. Mst. Gulabi was also arrayed as one of the defendants. That suit for redemption was decreed on September 30, 1963, and in execution of the said decree possession of the suit property was taken from Mst. Gulabi on November 29, 1965. Mst. Gulabi first filed objections under Order 21, Rule 100 and 101, CPC but these objections were dismissed on July 7, 1966. Thereafter, Mst. Gulabi respondent filed a civil suit No. 171/66 against the appellant and the mortgagee Chandanmal under Order 21, Rule 103, CPC on 8 -7 -66. It was averred in the plaint that there was no decree -against her for possession of the suit property, and that a co -mortgagor could not dispossess another mortgagor in execution or decree, that she was in possession of the property in her own right, and that a tenant of the mortgagee cannot be dispossessed in a decree against mortgagee for redemption of mortgage. The suit was contested by the appellant, and the allegations of the plaint were traversed. It was pleaded in the written statement that Mst. Gulabi was a party to the redemption suit instituted by the appellant, and as such the present suit is barred by the principle of res judicata. The learned trial Court on the pleadings of the parties framed the following issues: 1. Whether the plaintiff has been dispossessed from the suit premises illegally due to the reasons given in para 9 of the plaint? 2. What is the value of the property?

(3.) WHETHER the suit is barred by constructive res judicata?