R.S. VERMA J.—The facts giving rise to this revision petition are as follows : As per the plaint averments, one Daulat Ram was the owner of plot no. 143 and half portion of plot No.144 situated at Bazar no. 3, Bhopalganj Mandi, Bhilwara. He mortgaged the aforesaid plots to Bala bux, Kedarmal, Banshi Dhar, Ram Narain and Bhagat Ram, all sons of Shri Ram Agarwal, on 24.3.43 for a sum of Rs. 2200/-. The mortgage-deed was registered on 26.3.43. The possession of the aforesaid plots was transferred to the mortgagees One of the stipulations in the mortgage-deed was that the mortgagees could make such construction on the said plots as they liked and the plots could be re-deemed only on payment of the mortgage money and the costs of improvement. It is averred that on 24.3.43 itself mortgagor Daulat Ram executant Ram executed a separate agreement in favour of the mortgagees and reiterated the stipulation that the mortgagees would be free to raise constructions on the plots as they liked and after completion of the house on the plots the mortgagor shall receive As. 11/- from the mortgagees and shall execute a sale-deed in respect of the aforesaid property. It is alleged that the mortgagees raised constructions upon the said plots between the years 1943 and 1947.

2. It was further averred that the mortgagees paid a sum of Rs. 11/- to mortgagor Daulat Ram on 17.12.47 and Daulat Ram made an oral sale or the disputed property in favour of the mortgagees under the Mewar Laws and the mortgagees became full owners of the suit proerty and since then were in possession of the said haveli as its owners.

3. It was further averred that on 13.11.47 a partition took place amongst mortgagees and by this partition the suit haveli fell to the share of Bala bux and Kedarmal. A declaration was got registered in respect of aforesaid partition on 9.11.52. It was averred that plaintiffs No. 1 to 4 were sons of Kedar Mal and plaintiffs no. 5 to 8 were sons of Bala Bux.

4. It was further averred that on 2.7.1960 Daulat Ram made a gift of the equity of redemption in respect of the aforesaid mortgagees in favour of defendant no 1 Smt. Kanchan Bai even though the aforesaid property was not in the hands of Daulat Ram and Daulat Ram could not have made a gift of the aforesaid property to Smt. Kanchan Bai. Moreover, the plaintiffs predecessors in interest Bala Bux and Kedar Mal having become full owners of the property, for this reason also Daulat Ram could not have made a valid gift in favour of Kanchan Bai.

5. It was further averred that one Habib Chhipa obtained a money decree against mortgagor Daulat Ram. In execution of the said decree, namely, execution case no. 4/61, Habib Chhipa got the aforesaid Haveli attached. Against this attachment, the plaintiffs filed an objection petition under 0.21 rule 58 C.P.C. This objection petition was allowed on 13.4.1964 by the District Judge, Bhilwara and the Haveli was released from attachment. This Judgment became final between the parties as Daulat Ram did not institute any suit under 0.21 Rule 63 C.P.C. to challenge the said order. It is averred that in this objection petition mortgagor Daulat Ram had raised an objection that he had been paid Rs. 11/- in pursuance of agreement dated 24.3.43 but this contention of Daulat Ram was not accepted. It was averred that plaintiffs relying upon the decision of the learned District Judge did not institute any suit for specific performance of the contract of sale entered into between the mortgagor and the mortgagees.

5. It was further averred that on 12.4.65, defendant no. 1 Smt. Kanchan Bai instituted a suit for redemption of the mortgage property. This suit was decreed on 21.9.81, wherein it was held that the mortgagees had paid a sum of Rs. 11/- to mortgagor Daulat Ram on 17.12.47. In that very suit it was held that the agreement of sale dated 24.3.43 was not a clog on equity of redemption. In that view case the High Court held that merely by making a payment of Rs.11/- to the mortgag

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