RAMPRASAD Vs. KALYANI

JUDGEMENT

(1.) THIS is a second appeal by defendant Ramprasad against whom a decree for redemption on payment of Rs. 450/-has been passed by the Munsif Aimer District. Aimer and which has been upheld by the Civil Judge. Aimer

(2.) THERE is a pucka Patti Posh shop facing north situate at village Pisangan in the district of Aimer. Deceased Rameshwarlal alleged that the said shop belonged to one Murlidhar son of Shri Hanotram Banear of pisangan and it was martgaged by him with possession with Shri harkaran on Bhadwa Sudi 5. Samwat year 1958 for securing a loan of rs. 450/-% As disclosed by the deceased Rameshwarlal in the plaint, the mortgage amount was not to bear any interest and the mortgage was a usufructuary mortgage. It wag further alleged that Murlidhar died and his son Shrikishan by a registered sale deed dated 28-9-1953 transferred his rights to the plaintiff (deceased Remeshwarlal ). According to the allegation in the plaint, Harkaran mortgagee died and Ramprasad appellant was his legal representative and he had been realising the rent from Heeralal who had been in occupation of the mortgaged shop as a tenant. It was also stated by the plaintiff that defendant Ramprasad delivered possession of the said shop on Bhadwa Sud 11 Samwat 2015 corresponding to 23-9-1958 to the plaintiff but the defendant No. 2 heeralal continued to remain in possession as tenant But, defendant ramprasad filed a suit for ejectment against defendant No. 2 Heeralal and obtained a decree against him and he thus came in actual physical possession of the suit shop. The plaintiff, therefore, prayed for a declaration that he is the owner of the suit shop and for delivery of possession. In the alternative, he claimed that a decree for redemption be passed and he be restored possession on payment of the mortgage amount of Rs. 450/- to defendant Ramprasad. This suit was instituted by the deceased Rameshwarlal in the court of Munsif. Ajmer District. Ajmer on 8th December, 1959. It may be mentioned here that the original suit was amended and the reliefs claimed finally were those as mentioned above.

(3.) DEFENDANT Ramprasad contested the suit He controverted all the allegations made by the plaintiff. He denied that Murlidhar was ever the owner of the suit shop. He also denied that the suit shop was mortgaged with Harkaran. He did not admit that he recovered rent from Heeralal as the legal representative of harkaran. His contention was that he was the owner of the shop and he realised rent from Heeralal in his own right. He admitted to have obtained an order of eviction against his tenant Heeralal by filing the civil suit No. 655/1958 and he obtained possession from him and has been in actual physical possession of the shop since then