MAHANT PRAKASH NAND Vs. MATA DIN

JUDGEMENT

(1.) THIS is a special appeal by the defendant appellant Mahant Prakash Nand disciple of Mahant Ramswaroop under Art. 18 of the Rajasthan High Court Ordinance, 1949.

(2.) THE plaintiff respondent Mala Din, minor filed a suit for the redemption of 60 Bighas of land and the possession thereof after payment of Rs. 300/-, in the court of Nazim Kotkasim on 22nd October, 1945, alleging that Jainarain the grand father of the plaintiff had taken a loan of Rs 200/- from Mahant Ram Swaroop, Guru of the defendant appellant, on Pos Sudi 3rd Svt. 1967 and executed a bond which provided that in case the payment is not made by Basakh Sudi 15th Svt. 1968. the debtor shall execute a mortgage deed of the disputed property sought to be redeemed in this suit, that in case of his failure to execute the mortgage deed, the creditor shall be entitled to file a suit for specific performance for the execution of the mortgage deed. THE plaintiff respondent further alleged that the debt in the bond was not paid as stipulated and Mahant Ram Swaroop filed a suit for specific performance of the contract against Jai Narain and Jaglia, brother of Jai Narain, for the execution of the mortgage deed which was decreed on the 20th December, 1916 by consent of th. 3 defendant in that suit and thereafter Ram Swaroop was put in possession of the disputed property THE consent decree provided that the defendants shall execute a usufructuary mortgage deed for the consideration of Rs. 300/- in favour of Mahant Ram Swaroop and shall get it registered under the then law of Registration. THE defendant who is legal representative of Mahant Ram Swaroop was in possession of the property as a mortgagee and he was served with a notice to hand over the possession of the property after redemption but he has failed to do so. This suit for redemption was filed with the prayer that the property in dispute be redeemed after payment of Rs. 300/- and the plaintiff be put in possession of the property. It may be noticed that the plaintiff respondent failed to make a mention in the plaint that a mortgage deed as provided under the decree for the specific performance was duly executed, but he filed along with the plaint a document Fard Intekhab, Ex. P. 2 of the disputed property in which it was mentioned that an entry in the record of rights was made by virtue of the mortgage deed dated the 28th December, 1916, for the sum of Rs. 430/ -. THE defendant appellants filed their written statements in which they denied the allegations made by the plaintiff respondent and pleaded that the plaintiff hid not produced any mortgage deed and had not specified the date of the mortgage and therefore, the suit should be dismissed.