Dwarika Nath Karmakar vs Jasoda Devi and Nandu Gope and Others

Kulwant Sahay, J.—This is an appeal by the defendant No. 1 and it arises under the following circumstances. The defendants Nos. 8 to 7 executed a usufructuary mortgage in favour of defendant No. 1 on the 26th January, 1914, for a sum of Rs. 500. On the same date the defendant No. 1 took a kabuliyat from the defendants Nos. 3 to 7 in respect of the property covered by the mortgage-bond for a period of five years on the promise that the defendants Nos. 3 to 7 would pay him 45 maunds of paddy per year. The result was that although the defendant No. 1 took the usufructuary mortgage of the property in dispute, he did not obtain actual possession thereof; but the mortgagors continued in possession under the kabuliyat executed on the same date as the mortgage. The defendants, however, did not pay the rent fixed under the kabuliyat and, the defendant No. 1 had to bring a suit against the defendants Nos. 3 to 7 for realisation of the rent. This suit was instituted sometime in 1915 and a rent decree was passed and in execution of the decree the interest of the defendants Nos. 3 to 7 was sold and purchased by the defendant No. 1 on the 13th November, 1915, and the defendant No. 1 obtained possession in December, 1915.

The important question to be decided in the present appeal is as to what was the interest which was sold in execution of this decree. Subsequently the defendants Nos. 3 to 7 instituted a suit against the defendant No. 1 to set aside the mortgage on the ground that the property mortgaged was the right of a raiyat in a holding and that such a mortgage was invalid under the provisions of the Chota Nagpur Tenancy Act. This suit was dismissed on the ground that the property mortgaged was not a raiyati holding but a tenure. The defendants Nos. 3 to 7 then sold their equity of redemption to the present plaintiff who instituted the present suit for redemption of the mortgage of the 26th January, 1914. The defence of the defendant No. 1 was that the equity of redemption had already been sold in execution of the decree obtained by him in 1915 and that the plaintiff''s purchase of the equity of redemption did not pass any interest to him as nothing was left to the defendant No. 3 after the sale of November 1915.

Both the Courts below have held that what was sold was the right of the defendants Nos. 3 to 7 to remain in possession under the kabuliyat of the 26th January, 1914, and the equity of redemption was not sold in execution of the decree obtained by the defendant No. 1.

The plaintiff''s suit for redemption was, therefore, decreed.

In this second appeal oh behalf of the defendant No. 1 it is contended that the relationship created by the kabuliyat was not that of a landlord and tenant but the relationship between the parties was that of a mortgagor and mortgagee and that the decree obtained by the defendant No. 1 was not a rent decree and what was sold was not a raiyati interest which the defendants Nos. 3 to 7 never had, but, what was actually sold was the equity of redemption which the defendants Nos. 3 to 7 had under the mortgage of 26th January, 1914. It is, therefore, contended that what was purchased by the defendant No. 1 was the equity of redemption. It is conceded that the sale, if it was a sale of the equity of redemption, was irregular. It was a voidable sale and it is contended that the remedy of the plaintiff or his predecessor-in-title was to, bring a suit to set aside the sale and that such a suit was barred, and, therefore, the present suit is also barred. Now, in order to decide whether the suit is barred by limitation, the question to be decided is as to what was sold in November, 1915. The best evidence as regards the nature of the title which was acquired by the defendant No. 1 by virtue of his purchase of November 1915 is the sale certificate. The sale certificate describes the property as "the right to possess khas." It is contended that this was not a raiyati interest; but the right which the defendants Nos. 3 to 7 had was to redeem the mortgage. I am of opinion that such a construction cannot be placed upon the sale certificate. The sale purported to be effected in execution of a rent decree under the provisions of Section 208 of the Chota Nagpur Tenancy Act and a sale u/s 208 of the Chota Nagpur Tenancy Act can only pass the interest of the judgment-debtor in the tenancy in respect of which the rent decree was passed. It may be that the position of the defendants Nos. 3 to 7 was not that of an under-tenure-holder or an under-raiyat under the defendant No. 1; but as between the defendant No. 1 and the defendants Nos. 3 to 7 the relationship, which; the defendant No. 1 himself asserted did exist, was that of landlord and tenant and he purported to bring a suit for rent in the Revenue Court under the rent law and purported to sell the interest of the defendants Nos. 3 to 7 as tenants under him. The sale certificate goes to show that what was sold was the right of the defendants Nos. 3 to 7 to remain in possession of the land. This evidently referred to the right which the defendants Nos. 3 to 7 acquired under the kabuliyat of the 26th January, 1914. The defendant No. 1 never purported to sell the equity of redemption and he did not by his purchase acquire the equity of redemption. What he acquired was the right to remain in possession for the remaining period of the term under the kabuliyat of the 26th January, 1914. This is the finding of both the Courts below, and in my opinion this is the correct finding. Having regard to this finding it is not necessary to discuss the cases referred to by the learned Advocate for the appellant as those are cases in which it was the equity of redemption which the decree holder purported to sell, and the question arose as to whether the relationship between the parties was that of a mortgagor and mortgagee or that of a landlord and tenant. In the present case the equity of redemption was not intended to be sold and was not, as a matter of fact, sold.

The appeal is dismissed with costs.

Macpherson, J.

I agree.