KANHIYA LAL Vs. JAMNA LAL

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs Kanhiya Lal and Prahlad against the appellate decree of the learned District Judge Bhilwara upholding the decree of the learned Town Munsiff Bhilwara dismissing the plaintiff's suit for redemption of two Nohras and three shops situated in the town of Bhilwara, Jamna Lal, defendant 1 was made the principal defendant and Chhagan Lal and Panna Lal were also made defendants 2 and 3. The defendants Ganesh Ram and Andi Ram were also made defendants 4 and 5 on the allegation that defendant 1 had given the possession of one of the shops in dispute to them. It would be convenient to give the pedigree given by the plaintiffs in their plaint before proceeding any further. SANWAT RAm | Jagannath __________________________________|___________________________ _ | | | Kojodi Mal Janki Das Kishan Lal _________|______________________ ____|_____________ | | | | | Chhagan Lal Shivkaran Barwakaran Ramkaran Panna Lal (Defendant 2) | | (died Issueless) (Defendant 3) Haridas Mohan Lal _|_______________ (adopted son) | | | Hanhaiya Lal Mohan Lal Prahlad (Plaintiff 1) (Adopted by (Plaintiff 2) Barwakaran)2. The plaintiffs originally brought their suit on the allegation that one of the Nohras in suit was usufructuarily mortgaged by the ancestors of the plaintiffs with the ancestors of defendant 1 about Samvat 1968 for a sum of Rs. 300, and three shops in suit were usufructuarily mortgaged in about Samvat 1919 with Messrs Hans Raj Radhakishan of Ratlam (to be herein, after referred to as Ratlamwalas) by Shivkaran and Hari Dass for a sum of Rs 300. The said three shops came into the possession of defendant 1, Jamna Lal by a submortgage from Ratlamwalas. As regards the second Nohra in suit it was alleged that about Samvat 1963 it was usufructuarily mortgaged with defendant 1 for a sum of Rs. 400 by Chhagan Lal and Panna Lal defendants 3 and 3. It was further alleged that the whole of the property in suit came into the possession of the plaintiffs' ancestors by way of possessory mortgage from certain Suranas who sold it to the plaintiff's father and grandfather in samvat 1968. Defendants 3 and 3 therefore have no right in these properties but they were allowed to mortgage the Nohra simply because they required money for their father's expenses.

(2.) SUBSEQUENTLY an application for amendment of the plaint was made on 19th September 1941 to the following effect:-- (i) Kanhaiya Lal successor of Ratlamwalas to be added as defendant 6; (ii) The date of the mortgage deed by Suranas in favour of the plaintiff's ancestors to be given as Maghvadi 6, Samvat 1922 and the amount of mortgage money as RS. 957; (iii) The date of mortgage of three shops by the plaintiff's ancestors to Ratlamwalas to be given as Kartik Sudi 1, samvat 1911 and the amount of mortgage money as Rs. 1000. It would thus be seen by this amendment the three shops were alleged to have been mortgaged to Ratlamwalas on Kartik sudi 1, Samvat, 1947, instead of samvat 1942 as originally alleged and the amount of the mortgage money was Rs. 1000 instead of RS. 300; thus bringing the total amount of the mortgage money of all the property in dipute to RS. 1700 instead of Rs. 1000.

(3.) THE real question in the case is whether a usufructuary mortgage of these three shops was made by the plaintiffs ancestors in favour of Ratlamwalas and by the latter a sub-mortgage was made in favour of defendant 1. In order to prove this the plaintiffs placed their reliance upon Exs. P-1 and P-7. So far as Ex. P-7 is concerned it purports to be an entry from Nakal Bahi of the Ratlamwalas firm. It has not been proved as to who made that entry. A question was specifically put in cross-examination to Chhagan Lal who produced the original as to in whose hand writing the said entry was, but he replied that he did not know.