NATHU LAL Vs. MOOL CHAND

JUDGEMENT

(1.) MOIETY of a shop situated near old Police Kotwali in Deogarh was owned by Shri Rikhab Dass and rest moiety was owned by Gubal Chand and his sons Tara Chand and Nemi Chand. Mohan Lal son of Harak Chand, deceased (and now represented by respondents Nos. 1/1 and 1/2) by way of Civil Suit No. 312 of 1965 instituted on July 5, 1965 against the appellant and respondents Nos. 2 to 12 in the court of Munsif, Bheem, which was later on transferred to the Court of Munsif, Rajsamand, prayed for a decree of redemption and delivery of possession of the moiety of the shop as successor in interest of Rikhab Das which was alleged to have been usufructuarily mortgaged by Rikhab Das and his sons with Gulabchand and his sons Tarachand and Nemichand on Moti Bhadva Badi 9 Samvat year 1948 corresponding to the year 1891 A. D. Mohan Lal and respondents Nos. 2 to 9 were surviving legal representatives of the mortgagors. The appellant Nathulal and respondents Nos. 10,11 and 12 are descendants of the mortgagees.

(2.) IN his suit Mohan Lal, one of the co-mortgagors, claimed extension in the period of limitation for redemption of the mortgage on the basis of acknowledgement alleged to have been made by Modilal deceased son of Gulabchand, who one was of the co-mortgagees, on October 3, 1985 and yet another acknowledgement of the mortgage alleged to have been made by Nathulal appellant who was real son of Motilal (one of the sons of Gulab Chand) and was alleged to have gone in adoption to Daulat Ram another son of Gulabchand. The first acknowledgement was made in these circumstances that the former Mewar State sought to auction the suit shop for realizing some penalty amount from plaintiff's father Harakchand. IN these proceedings, Modilal, son of Gulabchand co-mortgagee filed objections on 3rd October 1935 and on Miti Sawan Sudi 12 Samvat 1994 (1937 A. D.) produced the copy of the mortgage deed executed by mortgagors in favour of his father Gulab Chand and his brothers Tara Chand and Nemi Chand. The other occasion was that Nathulal appellant, who is grand son of Gulabchand, had filed objections in Customs and Excise Department on November 14, 1947 and therein he acknowledged that half share of the suit shop had been mortgaged with them for Rs. 501/ -. Mohan Lal, plaintiff filled before Munsif, Rajsamand on September 10, 1969 on the ground that he had failed to establish the identity of the shop mortgaged and that the documents Ex. 1 and 2 produced in the suit did not relate to the shop in suit and also on the ground that suit for possession by redemption was barred by limitation. However, on appeal, Mohan Lal plaintiff succeeded before the Additional Civil Judge, Udaipur on October 21, 1974 who held that the mortgage was proved on the basis of secondary evidence adduced by the plaintiff in the form of Ex. 1 and Ex. 2 coupled with oral evidence. The identity of the shop mortgaged was also held to be established. The suit was also held to be within limitation on the basis of extension in limitation gained by the mortgagers and their descendents on account of the acknowledgements of liability made on October 3,19 5 to the 14th November 1947. The suit of Mohan Lal was preliminarily decreed by the Addl. Civil Judge. Udaipur. Aggrieved by this preliminary decree, Nathulal who is one of the descendants of mortgagees has come in second appeal before this Court.

(3.) I, therefore, allow this second appeal, set aside the decree of the Additional Civil Judge, Udaipur dated October 21,1974 and restore the decree of Munsif, Rajsamand dated September 10, 1969. In the circumstances of the case, the parties are left to bear their own costs throughout. Decree be prepared accordingly. .