I. N. MODI, J.

( 1 ) THIS is an appeal by the defendant Moolsingh against an order of the Senior civil Judge, Jodhpur, by which he reversed the judgment and decree of the trial court and remanded the suit for a decision on the merits.

( 2 ) THE plaintiffs case was that the defendant by an agreement dated Bhadwa Vadi 8 Smt. 1999 (corresponding to 1942 A. D.) made a Baras-kati mortgage of his share in village Khurda being his Jagir, for a sum of Rs. 4998/12/-, the Baras-kati being for a period of 13 years. The plaintiffs enjoyed the Baraskati for a period of five years, whereafter the possession of the Jagir was taken back by the defendant and instead, the defendant executed a new agreement Ex 1. on Bhadwa Sudi 8 smt. 2004 corresponding to the 22nd September,. 1947. By this agreement the defendant agreed to pay eight instalments of Rs. 401/each, the instalments to be paid on posh Sudi 15 every year and it was further stipulated between the parties that if the instalment was not paid on the due date, interest would be charged at the rate of 1 per cent per mensem. The plaintiffs case further was that the defendant paid the instalments for Samvat years 2004 and 2005 but the in