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High Court Of Rajasthan
Judgename : PRAKASH TATIA
KHEM RAJ - Appellant
Versus
BHOORA LAL - Respondent
Civil Second Appeal 128 Of 1986
Decided On : 04/03/2006
mortgage - possession - [Transfer of Property Act, Section 58] - The court discussed the admissibility of mortgage deeds as evidence, permissive possession, and the effect of a decree passed against a deceased person. The court found that the mortgage deeds were not admissible as evidence due to lack of registration, and the plaintiffs were entitled to possession based on prior possession and the defendants' admissions. The court also held that the plea regarding the death of a defendant was not raised in a timely manner and could not be considered in the appeal.
Fact of the Case:
The plaintiffs filed a suit for possession of a property against the defendants, claiming prior possession and seeking to redeem a mortgage. The trial court decreed the suit, which was upheld by the first appellate court. The appellant, one of the defendants, challenged the judgment and decree of the first appellate court.
Finding of the Court:
The court found that the plaintiffs were entitled to possession based on prior possession and the defendants' admissions. The court also dismissed the appellant's plea regarding the death of a defendant, as it was not raised in a timely manner.
Issues: Admissibility of mortgage deeds as evidence, entitlement to possession based on prior possession, effect of a decree passed against a deceased person.
Ratio Decidendi: The mortgage deeds were not admissible as evidence due to lack of registration, and the plaintiffs were entitled to possession based on prior possession and the defendants' admissions. The plea regarding the death of a defendant was not raised in a timely manner and could not be considered in the appeal.
Final Decision: The appeal of the appellant was dismissed.
( 1 ) HEARD learned counsel for the parties. The appellant is aggrieved against the judgment and decree of the trial court dated 19. 1. 1979 by which the trial court decreed the suit for possession of the plaintiffs against the defendants and the said decree was upheld by the first appellate court by judgment and decree dated 5. 4. 1986.
( 2 ) BRIEF facts of the case are that three plaintiffs Bhoora Lal s/o Udai ram, Naru s/o Udai Ram and Gopi s/o Udai Ram filed the suit for possession of the property described in para no. 1 of the plaint against the defendants Ganga Ram and Khem Raj. According to the plaintiffs, the suit property was belonging to the plaintiffs and plaintiff no. 1 mortgaged half share to Ganesh Lal, Khem Ram and Kanak Mal Mahajan for Rs. 275/ -. The plaintiff nos. 2 and 3 mortgaged their share to Khem ram and Kanak Mal for Rs. 60/ -. The mortgage was usufruct mortgage.
( 3 ) THE mortgagee in possession invested Rs. 150/- over the property which was mortgaged by plaintiff no. 2, therefore, the charge over the property against plaintiff nos. 2 and 3 was Rs. 210/ -. The plaintiffs got the mortgage re-deemed through defendant no. 1, as defendant no. 1 paid the mortgage loan amount to said mortgagees in possession. The plaintiffs thereafter mortgaged the property in dispute with defendant no. 1 for consideration of Rs. 900/ -. It is stated that defendants got the deed written in their book and got sign of the plaintiffs also. Since the mortgage was not registered, therefore, it remained incomplete and the suit for redemption of the property was not maintainable, therefore, the plaintiffs filed suit for possession of the suit property on the basis of their prior possession and sought possession of the property from the persons who are occupying the suit premises because of the permission granted by the plaintiffs. The plaintiffs prayed that since there is a charge of Rs. 900/- over the property, therefore, the plaintiffs are ready to pay Rs. 900/- to the defendants before taking possession.
( 4 ) THE defendants submitted written statement and denied the title of the plaintiffs to the property in dispute. The defendants also denied the earlier mortgages. The defendants submitted that actual owners of the property were Darjan Singh and Mog Singh. The defendants purchased the suit property from said Darjan Singh and Mog Singh. The defendants further stated that in fact the plaintiffs themselves were in possession of the suit property because of permission of the defendants to the plaintiffs to occupy the house. By this, the defendants admitted the possession of the plaintiffs but with plea that the defendants are not in permissive possession but the plaintiffs were in permissive possession.
( 5 ) THE defendants further submitted that the plaintiffs to take undue advantage, gave suit property to Ganesh Lal, Khem Ram and Kanak Mal mahajan. The defendants persuaded said Ganesh Lal, Khem Ram and kanak Mal Mahajan to vacate the suit house but they avoided to vacate it. However, according to the defendants, the possession of the suit property was delivered to the defendants in Samvat Year 2024 by Ganesh lal, Khem Ram and Kanak Mal Mahajan. It is also stated that defendants jointly gave Rs. 500/- to Bhanwar Singh in presence of large number of villagers and the plaintiffs declared that they shall not have any title in the property.
( 6 ) THE trial court framed issues and thereafter held that the mortgage deeds are not admissible in evidence for the purpose of proving the mortgage. The trial court also held that the plaintiffs fully proved the permissive possession of the defendants and the defendants admitted prior possession of the plaintiffs, therefore, the plaintiffs are entitled for decree of the possession of the suit property. Since the plaintiffs admitted that there is a charge of Rs. 900/- over the property in dispute, therefore, the trial court directed the plaintiffs to pay rs. 900/- to the defendants.
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