AHMAD HUSAIN Vs. MUHAMMAD QASIM KHAN

JUDGEMENT

(1.) This appeal is against the judgment of a learned Judge of this Court and raises two points.

(2.) It appears that the learned Judge decided a question of fact, viz., whether all the representatives, of the original mortgagees, together, had acquired an interest in a part of the mortgaged property or whether some of the representatives of the original mortgagees had acquired that interest. It has been pointed out to us that this question never arose in this Court and the argument of the appellants seems to be right.

(3.) In Clause (g), para 2 of the plaint, the plaintiffs stated that the original share mortgaged was a 5 biswa one, that a portion of it, viz., 1 biswa, had already been redeemed, that 2 biswas had been purchased by the mortgagees themselves, that 2 biswas remained under mortgage, that out of these 2 biswas an 11/42 share had also been redeemed and that they wanted the redemption of the remaining 31/42 share out of the 2 biswas. The defendants in their written statement did not contest this statement of facts. Indeed, in para 1 of their additional statements they accepted this statement of facts and raised the plea in law that the integrity of the mortgage having been broken the plaintiffs were not entitled to ask for redemption of more than their legitimate share. It will be noticed, therefore, that on the pleadings question of fact, as to whether all the representatives of the mortgagees had purchased or not a share of the mortgaged property arose. When an appeal was taken to the lower Appellate Court that Court remanded three issues of fact. One of these was: Have the mortgagees or their representatives acquired the ownership of any part of the mortgaged property.