JANKI RAM Vs. MISRI LAL

JUDGEMENT

(1.) The facts out of which this appeal arises are as follows: The plaintiffs executed on the 3 of July 1912 a usufructuary mortgage of some of their sir land in favour of the defendant for Rs. 100. On the same date they executed an agreement to the effect that if they did not give possession to the defendant or if the defendant having obtained possession, lost it they would re-pay the principal mortgage- money, plus interest at the rate of 2 per cent, per mensem from the date of mortgage. As a matter of fact the plaintiffs remained in possession throughout and still are in possession. It appears that when the defendant applied for mutation of names he was resisted by the plaintiffs and mutation was not effected. After that the defendant seems to have done nothing. He did not apply under Section 36 of the Land Revenue Act to have the rent assessed, assuming that he could have done so.

(2.) The plaintiffs brought this suit to redeem the mortgage on payment of Rs. 100 only. The suit was filed on the 30 of June 1920, that is to say, they had had the use of defendant's money for about 8 years and had paid no rent or interest to the defendant. The defendant claimed that they were not entitled to redeem unless they paid interest according to the agreement already mentioned.

(3.) The Trial Court decreed the plaintiffs claim, holding that the defendant was not entitled to physical possession of the mortgaged property as it was the plaintiffs sir and that the defendant could only have got the rent assessed, and as he never applied to have the rent assessed, the fault was his.