BABOOLAL Vs. NATHMAL

JUDGEMENT

(1.) This is a plaintiffs' second appeal in a suit for redemption of a shop situated in the Sadar Mandi, Jaisalmer. The boundaries of the shop are given in the plaint and need not be repeated here. The suit was originally brought by Baboolal son of Chintamandas, but later on Phoolchand and Sujansingh were also impleaded as plaintiffs. The plaintiffs' case was that the said shop was mortgaged by Chintamandas, father of the first plaintiff, with the defendant Nathmal's father Moolchand for Rs. 475/- on Posh Vad 3 Samwat 1981, and he was also placed in possession thereof. Thereafter, on 9-11-1940, the plaintiff gave a notice to the defendant through the Court for the redemption of the property, but he did hot give any reply. It was therefore prayed that Rs. 475/-which the plaintiffs had deposited in the Court should be given to the defendants and they should be ordered to hand over possession of the property to the plaintiffs.

(2.) One of the defendants, namely Ramlal presented his written-statement on 264- 1946, He admitted the fact that Chintamandas had mortgaged his shop with the Firm Moolchand Ramlal for Rs. 475/-. He, however, pleaded that he had separated himself from the said Firm in the Samwat year 1936, and. that all the property and papers relating to the said Firm were in the possession of his brother defendant 2 Nathmal. It was prayed that he had, therefore, nothing to do with the disputed property and the suit against him should be dismissed. The second defendant Nathmal's reply was that the disputed shop was never mortgaged by Chintamandas with his (defendant's father) that it was his ancestral property and he was in possession thereof for several generations, He raised other objections also on the basis of which the following six issues were framed by the trial Court: -

(3.) The trial Court decided all the issues in the plaintiffs' favour and decreed the suit on 16-2-1951. Defendant Nathmal went in appeal against this decree. The learned Civil Judge found that the mortgage deed was inadmissible in evidence and inoperative because it was not got verified according to the circular order issued by the Jaisalmer State on 25-4-1920. It was further remarked that the original mortgage-deed being inadmissible, secondary evidence regarding the terms of mortgage was also inadmissible. He therefore held that specific mortgage was not proved and so the decree of the trial Court was reversed and the suit was dismissed.