NIRANJAN LAL Vs. BADRI LAL

JUDGEMENT

(1.) THIS is a second appeal by the defendants against the appellate decree of the District Judge, Pratapgarh dated January 30, 1976 affirming the preliminary decree of the Additional Civil Judge, Pratapgarh dated May 1, 1971 whereby the latter had decreed Civil Suit No. 64 of 1966 instituted by the plaintiffs for possession of their portion in a 'haveli' and shop situated in Sadar Bazar, Mochi Para, Chhittorgarh after taking accounts of the income derived by the appellants from the share of the plaintiffs' property.

(2.) FACTS leading to the filling of this second appeal are that on April 4, 1966, the plaintiffs -respondents instituted Civil Suit No 64 of 1966 against Chhaganlal and his son Niranjan Lal Chhaganlal died during the pendency of the suit. His son Niranjan Lal was already on record and his widow Smt. Alil Bai was also substituted as his legal representative. The plaintiffs -respondents alleged in the plaint that the parties alongwith Udailal and Bhanwar Lal jointly owned a 'haveli' and shops situated in Sadar Bazar, Mochi Para, Chhittorgarh in which all these four parties had equal shares as the same was their ancestral property. This property had been usufructuarily mortgage by the ancestors of the present owners in favour of Seth Sumermal Bapna. The mortgage properties were got redeemed on Miti Mangsar Sudi 10 Samvat 1994 and the entire mortgage amount of Rs. 701/ - was paid by the defendants -appellants. After the redemption of the mortgage, expenditure was incurred by all the co -sharers in the repair and maintenance of the haveli, and shops. On Miti Ashadh Sudi 5 Samvat 1998, there was a partition of the said properties between four sets of co -owners and the portion of the 'haveli' and shop detailed and described in para 6 of the plaint came to the share of the plaintiffs while property specified in para 7 of the plaint was kept joint. The plaintiffs were not given possession of the portion allotted to them in partition because they were not in a position to pay their share of the mortgaged money as well as their share in the joint expenditure made by the appellants in the repairs and improvements in the 'haveli' and shop. Thus the portion of the property which had fallen to the share of the plaintiffs remained in possession of the appellants and it was agreed that when the plaintiffs would pay their share of the mortgage money and the repairs and improvements with interest at 8% per annum, they would be entitled to get the possession of the property. It was agreed that the plaintiffs' share in the property will remain mortgaged with the appellants till the former paid the entire dues. It was alleged that on Miti Savan Sudi 15 Samvat 2004 accounts were gone into and a sum of Rs. 1570/ -was found due against the plaintiffs. The plaintiffs further borrowed a sum of Rs. 1631/ - from the defendants and the share of the plaintiffs in the suit property remained with the defendants with the stipulation that the defendants will take the amount of Rs. 3201/ - from the 'plaintiffs with interest at 9 annas per cent per month and further that the defendant will credit the amount of receive in the account of the plaintiffs. It was further alleged that all the four sets of co -shares bad sold joint shop situated in Juna Bazar, Chittorgarh for an amount of Rs. 500/ - to Ganesh Dhohi and the plaintiffs share of the sale price amounting to Rs. 125/ - was allowed to remain with the defendants. Apart from that, the plaintiffs gave two iron gieders valuing Rs. 102/ -after giving credit to both these amounts, only an amount of Rs. 2900/ - remained payable by the plaintiffs to the defendants. In August, 1965, plaintiffs called upon the defendants to render accounts of the income of 'haveli' and shop derived by them and to deliver the possession of the property allotted to them in partition but with no avil. The plaintiffs, there -fore, instituted the above suit for rendition of accounts and for decree of possession over the suit property on payment by them to the defendants of the amount which may be found due against them.

(3.) THE trial court framed as many as 16 issue in the suit and after trial decreed the suit in favour of the plaintiffs. Aggrieved by the decree of the trial court, the defendants filed Civil First Appeal No. 77 of 1971 before the District Judge Pratapgarh. Before the District Judge, the sole argument advanced on behalf of the defendants was that the plaintiffs' suit was in substance a suit for redemption of their share in the 'haveli' and the shops which bad been redeemed by the defendants by paying the entire mortgage money of Rs. 70i/ - to the original mortgagees Seth Sumermal Bapna. It was urged that as a result of the redemption of the 'Haveli' and the shops by the defendants by paying the mortgage amount, they were subjugated to the rights of the original mortgagees. It was submitted that the plaintiffs had failed to prove the date of the original mortgage and that the suit had not been brought within 60 years of the original mortgage. It was argued that Article 132 of the Limitation Act applied and the suit of the plaintiffs was barred by limitation. The learned District Judge held that the suit of the plaintiffs was squarely covered by Article 2 and not be Article 7 of Kanoon Miyad Mewar. According to him, Article 7 applied only to such suits which bad been filed between mortgagor and mortgage. Article 2 was wider in scope and would cover suits for recovery of possession in respect of property which is subject matter of mortgage. He, therefore, observed that the plaintiffs had clear 60 years within which they could institute the suit. The District Judge found that when the Limitation Act of 1908 became applicable to the former Part B States, the cause of action was alive and Article 148 of the Limitation Act of 1908 provided limitation of 50 years. In the mean while, Indian Limitation Act, 1963 had come into force. On that c'ate also, the cause of action was alive. Section 30 of the Limitation Act of 1963 provided for a grace period of five years from 1st January, 1964 for such suits for which the period of limitation had been shortened. Article 61(a) of the Limitation Act of 1963 had reduced the period of such suits to 30 years and as the suit bad been instituted within the grace period of five years from 1st January, 1964, it was within limitation. On the basis of these findings, the District Judge, Pratapgarh dismissed the appeal filed by the defendants. The defendants have come in second appeal before this Court.