PARTAP Vs. RAM SEWAK

JUDGEMENT

(1.) The principal question that arises in this Letters Patent Appeal is whether the learned single Judge of this Court was right in allowing an amendment of prayer in the plaint. There was no prayer for amendment of the plaint.

(2.) The respondents here were the plaintiffs in the Court of first instance. They brought the suit, out of which this appeal has arisen, to redeem a mortgage, dated the 5 of January, 1872, executed by one Sheodih in favour of one Mohan. The plaintiffs are transferees of Sheodin's heirs. They pleaded that the defendants were-transferees from Mohan's heirs and that, therefore, they, were the mortgagees under the mortgage aforesaid. The defence was that the mortgage of 1872 was paid off by Hira Lal and Ganesh, the predecessors-in-title of the, defendants, under the following circumstances, the sons of Sheodin were minors and their mother was anxious to pay off a simple money-decree standing against the sons. She, accordingly, arranged with Hira Lal and Ganesh that the latter should advance a sum of Rs. 923-8-4 to pay off the decree and a sum of Rs. 325 to pay off Mohan. Hira Lal and Ganesh advanced these two sums of money and were put in possession of the property, which had been in the possession of Mohan. No. deed was executed but certain statements of facts were made in a rubkar (proceedings) in the Revenue Court on the 20 of November, 1882.

(3.) The Court of first instance decreed the suit for recovery of possession on payment of Rs. 325. The lower Appellate Court was of opinion that the mortgage of 1872 had been extinguished and that it was probable that Hira Lal and Ganesh had become owners of the property on account of being in possession of the same since November, 1832. The Court, however, did not express any definite opinion on the point. It held that as the plaintiffs did not ask for redemption of any mortgage other than the mortgage of the 5 of January, 1872, and that mortgage having been satisfied, the suit must fail. It accordingly dismissed the suit.