IMPORTANT POINT
The main legal point established in the judgment is that a suit for recovery of possession without seeking redemption of the mortgage is not maintainable under Section 34 of the Specific Relief Act, 1963, and Section 60 of the Transfer of Property Act.

JUDGMENT :

The Second Appeal has been filed by the defendants-appellants against lower appellate court's judgment and decree dated 03.04.2007 passed by the learned Additional District Judge, Fast Track Court-II, Munger in Munsifi Title Appeal No. 02 of 1998 allowing the appeal and reversing the judgment and decree dated 16.12.1997 passed by learned Munsif-II, Munger in Title Suit No. 59 of 1986 by which suit of the plaintiffs-respondents was dismissed.

2. On 16.02.2010, the following Substantial Questions of Law were formulated while admitting the appeal:-

(I). Whether the learned court of appeal below, while reversing the judgment and decree of the trial court, was justified in decreeing the suit and claim of the plaintiffs for recovery of possession only without any relief sought with regard to declaration of title or redemption of mortgage of 1920?

(II). Whether the suit and claim of the plaintiffs was barred under proviso (2) Section 34 of the Specific Relief Act, 1963?

(III). Whether the learned court of appeal below rightly put onus on the defendants-Ist party to disprove the relationship of the plaintiffs with mortgagors?

3. The respondents-Ist set/plaintiffs filed Title Suit No. 59 of 1986 for recovery of possession of land mentioned in Schedule III of the plaint area of which was 2 Bigha 10 Kattha and 5 dhurs of Khata No. 95, Plot No. 488 as per the boundary with mesne profit from the date of institution of the suit with a direction to defendants-appellants to put plaintiffs in possession of the Schedule III land failing which the plaintiffs will be put in possession through the process of the court by evicting the defendants or any person on their behalf.

4. The case of the plaintiffs', is that, one Mangar Ram, son of Narayan Ram died prior to survey of 1908, leaving behind his two sons, namely, Sevak Ram and Bhola Ram. Plaintiffs are descendants of Bhola Ram and Sevak Ram was elder brother of Bhola Ram. Hence, in cadestal survey Khatiyan name was recorded in favour of Sevak Ram. Sevak Ram died issueless in the state of jointness leaving his widow, Lachho Kaharin who executed usufructuary mortgage (sudbarna) of land described in Schedule II of the plaint on 02.12.1920 of Khata No. 95, Plot No. 488, area 2.47 acres in favour of Fulo Ram ancestor of defendant-Ist party(appellants). Lachho Kaharin also died in state of jointness with plaintiffs the only heirs. The due date of payment of the mortgage money was stipulated till 1337 fasli i.e. 1930. It was further stipulated that if the mortgagor failed to pay the mortgagee by the due date fixed, the sudbarna will continue till redemption. It is further contended that Mostt. Lachho Kaharin died in the state of jointness with Sibu Ram, who performed the agni kaaj and saradh of his grandmother Mostt. Lachho Kaharin. The plaintiffs succeeded to the joint property left behind by Sevak Ram and Bhola Ram and late Bhaglu Ram. Since the plaintiffs are the heirs of Sevak Ram and therefore, they have got a right to redeem the sudbarna deed dated 02.12.1920. It is further contended that the plaintiff no. 1 filed Miscellaneous Case No. 37 of 1968 under Section 83 of Transfer of Property Act in the court of Munsif-II, Munger, and deposited the sudbarna money in the court. The notice of the said deposit was served upon Fulo Ram-mortgagee. On receipt of the notice, Fulo Ram appeared and filed objection with false and incorrect allegations, but the case was disposed of without any adjudication due to fraud committed upon the court by late Fulo Ram and others. Fulo Ram ancestor of the defendant-Ist party instead of withdrawing sudbarna money and even after giving possession of the sudbarna land, he created some papers without the knowledge of the plaintiffs. It is contended that Fulo Ram taking advantage of his possession as mortgagee fraudulently got his name mutated in the office of State of Bihar in respect of 2 Bigha 10 Kattha and 5 dhurs of land out of the sudbarna land in 1975 detailed in