JAMNA Vs. GHISILAL & ORS

JUDGEMENT

(1.) This appeal has been preferred by Smt. Jamna daughter of late Shri Bhawanilal Lohar against respondents Ghisilal, Nihalchand, Smt. Motiya, Smt. Dhapu and Smt. Sita being aggrieved by the judgment and decree passed by the learned Additional District and Sessions Judge (Fast Track), No.2, Bhilwara on 19.02.2005 in Civil Original Suit No. 111/2003, by which the learned trial court dismissed the suit of the appellant-plaintiff, which was filed for declaration and permanent injunction.

(2.) The brief facts giving rise to this appeal are that the appellant-plaintiff filed a suit for declaration and permanent injunction against the present respondents in the Court of District and Sessions Judge, Bhilwara, which was further transferred for adjudication in the Court of Additional District and Sessions Judge (Fast Track), No.2, Bhilwara. The suit was filed on the basis that the suit property was purchased by the father of the appellant from Narayan who was having Bapi patta in his name dated 05.07.1951 and after the death of Bhawanilal, the father of the appellant, the appellant-plaintiff along with defendant No.1, 3, 4 and 5 were joint owners of the plot in question and as the appellant was living with her father, therefore, she was in exclusive possession of the suit property. The defendant No.1 executed a mortgage deed with conditional sale dated 23.08.1991 in favour of the defendant No.2 in lieu of the mortgage money of Rs.97,000/-. The appellant-plaintiff challenged that mortgage deed on the ground that defendant No.1 Ghisilal was not competent to mortgage that property in favour of the defendant No.2, therefore, by filing the suit she prayed for injunction and cancellation of the mortgage with conditional sale.

(3.) Defendant No.1, 3 and 4 did not file any written statement and defendant No.2 denied the facts mentioned in the plaint. On the basis of the pleadings of the parties, the learned trial court framed the following six issues :-