IMPORTANT POINTS
(1) Redemption of usufructuary mortgage – Defective counter claim of defendant would not take away statutory right to redeem usufructuary mortgage.
(2) First appeal can be filed against decree and not against multiple decrees.

JUDGMENT (ORAL)

This second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenges the judgment and decree passed in Regular Civil Appeal No.9 of 2023 by the 3rd Additional District Judge, Kachchh at Bhachau, by which, the learned Additional District Judge dismissed the first appeal and confirmed the judgment and decree passed in Regular Civil Suit No.18 of 2011 by the Additional Civil Judge, Rapar (Kachchh) whereby, suit of the plaintiff was partly allowed and the counter claim preferred by the defendant under Order 8, Rule 6(A) of the Code was rejected. By the judgment and decree, learned Trial Court ordered that the defendants were restrained by issuing a permanent injunction from interfering with the plaintiff’s possession over the land of Survey No.165/1 and Survey No.166 of Mouje : Momaymora, Taluka : Rapar, District : Kachchh (‘suit property’) without following due process of law. Further, the permanent injunction was issued to the effect that the defendants have no right whatsoever to sell or transfer the suit property without following due process of law.

2. The factual aspects leading to filing of the present second appeal are as under:

2.1 The suit property, particulars of which are stated in the plaint, is in independent possession of the plaintiffs. By Promulgation Entry No.93 (19.09.1971), the father of the plaintiff obtained the possession of the suit property on execution of usufructuary mortgage from the grandfather of the defendants. The father of the plaintiff died 12 years back. Upon inheritance, the plaintiff received possession of the suit property. The plaintiff apprehend that since he is in legal and peaceful possession of the suit property, the defendants have no right whatsoever to seek possession of the suit property without following due process of law. The plaintiff further apprehends that the defendants, in connivance with one Mr. P.N. Sureva, an employee of E-dhara, may nullify the plaintiff’s possession over the disputed property, without redeeming usufructuary mortgage. Some revenue proceedings took place between the parties which ultimately led the plaintiff to file the Civil Suit seeking the relief of permanent injunction restraining the defendants from interfering with the plaintiff’s possession over the suit property and further restrain the defendants from selling the suit property to any third party.

2.2 The process was served upon the defendants. By Exh.10, the defendants have filed the written statement. The facts pleaded by the plaintiff have been denied in the written statement. It is further claimed that the grandfather of the defendants had given the suit property under usufructuary mortgage to the father of the plaintiff therefore, the defendants are the owners of the suit property and the plaintiff is only a tenant. No sale deed was ever executed. In the year 1988, part redemption took place and some of the land was resumed from the deceased-Nathabhai Panchabhai and since then, the defendants are in possession of the land bearing Survey No.165/1 admeasuring 1 Acre 2-10 Guntha.

2.3 The counter claim under Order 8 Rule 6A of the CPC was preferred for the redemption of usufructuary mortgage qua the land of Survey No.166. Reply to the counter-claim has been filed at Exh.14 by the plaintiff denying that the defendants are not the legal heirs of Ratansangji Ramsangji. The defendants were put to strict proof of the said facts. It is further stated that the defendants are required to prove that the land of Survey No.166 admeasuring Acre 4-30 Gunthas has been handed over to the ancestor of the plaintiff by way of usufructuary mortgage.

2.4 In the background of the rival claim, the learned Trial Court framed the issues at Exh.24. Both the side led evidence which ultimately resulted as plaintiff’s suit was decreed, defendants’ counter claim was rejected on the ground of limitation.

2.5 Being aggrieved, Regular Civil Appeal No.9 of 2023 was preferred be