KHEM RAJ Vs. BHOORA LAL

JUDGEMENT

(1.) Heard learned counsel for the parties. The appellant is aggrieved against the judgment and decree of the trial court dated 19.1.1979 by which the trial court decreed the suit for possession of the plaintiffs against the defendants and the said decree was upheld by the first appellate court by judgment and decree dated 5.4.1986.

(2.) Brief facts of the case are that three plaintiffs Bhoora Lal s/o Udai Ram, Naru s/o Udai Ram and Gopi s/o Udai Ram filed the suit for possession of the property described in para no.1 of the plaint against the defendants Ganga Ram and Khem Raj. According to the plaintiffs, the suit property was belonging to the plaintiffs and plaintiff no.1 mortgaged half share to Ganesh Lal, Khem Ram and Kanak Mal Mahajan for Rs.275/-. The plaintiff nos.2 and 3 mortgaged their share to Khem Ram and Kanak Mal for Rs.60/-. The mortgage was usufruct mortgage.

(3.) The mortgagee in possession invested Rs.150/- over the property which was mortgaged by plaintiff no.2, therefore, the charge over the property against plaintiff nos.2 and 3 was Rs.210/-. The plaintiffs got the mortgage re-deemed through defendant no.1, as defendant no.1 paid the mortgage loan amount to said mortgagees in possession. The plaintiffs thereafter mortgaged the property in dispute with defendant no.1 for consideration of Rs.900/-. It is stated that defendants got the deed written in their book and got sign of the plaintiffs also. Since the mortgage was not registered, therefore, it remained incomplete and the suit for redemption of the property was not maintainable, therefore, the plaintiffs filed suit for possession of the suit property on the basis of their prior possession and sought possession of the property from the persons who are occupying the suit premises because of the permission granted by the plaintiffs. The plaintiffs prayed that since there is a charge of Rs.900/- over the property, therefore, the plaintiffs are ready to pay Rs.900/- to the defendants before taking possession.