SAWA Vs. NAKI MOHAMMED

JUDGEMENT

(1.) THIS is a reference by the Civil Judge, Banswara, under sec. 40 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951) (hereinafter referred to as the Rajasthan Act), and, has arisen under the following circumstances.

(2.) THE plaintiffs Sawa and Heera are brothers, sons of Deva. THEir case, as disclosed in the plaint filed in the court of S. D. O. Banswara is that they as well as their brother Nathu who has been impleaded as defendant No. 2 are bapidars of fields Nos. 63 and 65 of village Ban and have been recorded as such in the settlement record. THEy further alleged that, seven years ago, they executed an unregistered mortgage deed in favour of defendant Naki Mohd. for a sum of Rs. 230/- and that the said defendant got into possession of the fields. It is further alleged that the plaintiffs gave notice to the contesting defendant to hand over possession, in which they also said that they were prepared to pay the mortgage money, namely, Rs. 230/-, but the defendant declined to accede to their request. THE stand taken by the plaintiffs now is that as the mortgage deed executed by them in favour of defendant Naki Mohammed was unregistered, the mortgage was ineffective and conferred no title upon him and, therefore, he was a trespasser within the meaning of serial 1°, Group B, Schdl. 1 of the Rajasthan Act. THE plaintiffs, therefore, prayed that the defendant Naki Mohammed be directed to make over possession of the suit fields to the plaintiffs.