NARAYANI DEVI Vs. RAMESH KUMAR

JUDGEMENT

(1.) By the instant appeal, appellant-defendants have challenged judgment and preliminary decree dated 11.10.2017, passed by Additional District Judge No.1, Camp Mavli, District Udaipur (for short, 'learned trial Court'). Learned trial Court, by the judgment, while granting relief to respondent-plaintiffs, allowed redemption of mortgaged property and passed preliminary decree in favour of respondent-plaintiffs regarding suit property.

(2.) The facts, apposite for the purpose of this appeal, are that at the threshold, Jasraj Duggar and two others filed a suit against the original-defendant Magan Lal Prajapat for redemption of mortgaged property, a shop admeasuring 10ft.x10ft., situated at Fatehpur, Tehsil Mavli. The dimensions and neighbourhood of the shop are also mentioned in the plaint. As per the version of the respondent-plaintiffs, a registered mortgage-deed was executed by plaintiff No.1 Jasraj Duggar with the consent of plaintiff No.2 for a sum of Rs.25,000/-. As per the deed, the duration of mortgage was three years. The requisite possession of the shop was also handed over by the mortgagor to the mortgagee. After execution of the mortgage-deed, plaintiff No.1 received a sum of Rs.1,75,000/- from original-defendant and in lieu thereof, executed an agreement in his favour with the condition that in case plaintiff No.1 pays Rs.2,00,000/- to the defendant then possession of the mortgaged shop would be handed over to him. With the advent of time, the duration of mortgage expired and in the interregnum, plaintiff No.2 by registered sale-deed dated 31.01.2007 transferred his share in entire property including the shop to plaintiff No.3. The first-plaintiff, upon expiry of the mortgage period, asked original-defendant to hand over possession of the mortgaged shop. The request of first-plaintiff did not find favour of the original-defendant and therefore, to retain possession of the mortgaged shop, he filed a civil suit for permanent injunction before Civil Judge, Jr. Division, Mavli on 04.10.2007. During pendency of that suit, original-defendant also impleaded plaintiff No.3 and his brother Nirmal Kumar as defendants, although they were neither necessary nor proper parties. In the suit, filed by the original-defendant, the factum of mortgage was admitted by him besides the subsequent agreement.

(3.) Be that as it may, when original defendant adopted an obstinate posture vis ?-vis proposal of the first-plaintiff, on behalf of all the plaintiffs, a notice was dated 17.08.2008 was served calling upon him to accept Rs.2,00,000/- and to hand over possession of the mortgaged shop. In response to the said notice, original-defendant sent his reply on 01.09.2008, wherein he declined to hand over possession of the mortgaged shop. With all these averments, the respondent-plaintiffs claimed redemption of mortgage and a direction against the original-defendant to hand over possession of the mortgaged shop after accepting Rs.2,00,000/-. It is further prayed that defendants may be asked to pay Rs.2000/- per month as mesne profits for use and occupation of the mortgaged shop till possession is handed over.