(1.) This is a defendants appeal and arises out of a suit for redemption of a mortgage. The plaintiffs case was that the mortgage sought to be redeemed was effected by means of an unregistered deed of mortgage executed 19 years prior to the institution of the suit, that is, in or about the year 1904, by Charan and Nath, the predecessors-in-title of the plaintiffs, in favour of Maha Mangal, Rai, Defendant No. 1, for a sum of Rs. 200 and that the property mortgaged was an occupancy holding. It was further alleged in the plaint that though the relation between the parties to the suit was that of mortgagor and mortgagee, the plaintiffs had on a former occasion, because of a wrong advice given to them, brought a suit for ejectment of the defendants from the holding in dispute in the revenue Court, but that suit was dismissed on the finding that the defendants were in possession as mortgagees. The plaintiffs alleged that as the defendants refused to take mortgage-money and to deliver possession of the holding in dispute the plaintiffs were compelled to bring the suit for redemption.
(2.) The defence to the suit was a denial of the mortgage and an assertion by the defendants that they were the original tenants of the holding in dispute and were not in possession as mortgagees. The defendants further urged that the decision in the ejectment suit filed by the plaintiffs in the revenue Court operated as res judicata in the present suit. The trial Court held that the plaintiffs had failed to prove that the defendants were in possession as mortgagees, and on that finding dismissed the plaintiffs suit.
(3.) Out of the four plaintiffs only one, namely Kishun Kandu, filed an appeal against the decree of the trial Court in the lower appellate Court. But it was noted in the memorandum of appeal filed by him that he was preferring the appeal under Order 41, Rule 4 of the Civil P.C. on behalf of all the plaintiffs.