ABDUL GANI Vs. DEVI LAL

JUDGEMENT

(1.) This is a defendant's appeal under Order 43, Rule 1 Clause (u) C. P. C. against an appellate order of the District Judge, Jodhpur dated 30th September, 1958 reversing the decree of the Civil Judge, Jodhpur dismissing the plaintiff- appellants' suit an a finding on one issue, and remanding the case for fresh decision after determining various other points arising in the suit. The material facts necessary for the decision of this appeal may be briefly given as follows :

(2.) On 5th August, 1949 the defendant-appellant No. 1 Abdul Gani borrowed Rs. 2500/- from the plaintiff-respondents Devilal and Radhe Shyam and created a usufructuary mortgage of a house and transferred the possession of the house to the plaintiff-respondents. On the same day he took on lease the house from them and executed a rent-note in their favour on his own behalf and on behalf of his minor son Mohmad Saffi.

(3.) Alleging that the defendant-appellant did not pay any rent after the execution of the rent-note the plaintiff-respondents brought a suit for ejectment of the defendant-appellant from the house and for the recovery of Rs. 225/-as arrears of rent on 17-5-50 in the Court of Munsif, Jodhpur. Afterwards some minor amendments were made in the plaint and then it was on 18-5-1950 that the defendants filed a written statement. A number of pleas were raised by the defendants but I am not concerned with them in this appeal. On 18th December 1950 the case was adjourned to 13th January, 1951 for plaintiff's written statement. On 13th January, 1951 the defendants submitted an application marked Ex. D.W. 2 stating that at the intervention of some people the parties had compromised the claim under the mortgage itself and that the defendant-appellants paid Rs. 2600/-in full satisfaction of the claim under the mortgage. He produced a copy of the receipt purporting to have been executed by the plaintiff-respondents. It was further mentioned that the plaintiff had promised to return the mortgage-deed and the title-deeds and to withdraw the suit for ejectment but he is not doing so. He, therefore, prayed that in view of this settlement resulting in the discharge of the mortgage itself the suit of the plaintiffs should be dismissed. The plaintiff-respondents opposed this application and denied having executed any receipt. An issue was framed