Inderdeo Narain Singh and Others vs Gourishankar and Others

Das, J.—In this suit the plaintiffs claimed the following reliefs:

(1) That it be adjudicated by the Court that the plaintiffs by their purchase of mauza Mirzapur Hasanpur with all its dependent mauzas on 17th September 1917 in execution case No. 252 of 1915 of the Court of the Subordinate Judge, 2nd Court at Patna, acquired the said mauza Mirnapur Hasanpur with all its dependent mauzas free from all encumbrances and defendants 1 to 3 have no right to withstand the possession of the plaintiffs and that the possession of defendants 1 to 7 is that of trespassers.

(2) That possession be given to the plaintiffs dispossessing the defendants.

The learned Subordinate Judge declined to give the plaintiffs a decree for possession but has in substance allowed them to redeem the defendants on payment to them Rs. 22,160 or such sum as may be found due to the defendants on taking of accounts. Dissatisfied with the judgment of the learned Subordinate Judge the defendants appeal to this Court.

It appears that the plaintiffs purchased the disputed properties at a sale held in execution of a mortgage decree obtained by Rai Bahadur Harihar Prasad Singh, on 14th February 1905. That was a mortgage decree. It appears that there were certain prior mortgages and certain subsequent mortgages. The defendants were subsequent usufructuary mortgagees, and it appears that they have paid off certain prior mortgages to the extent of Rs. 22,160.

In a previous litigation between the parties it has been decided that the defendants in relation to the plaintiffs are prior mortgagees. Having regard to that decision the learned Subordinate Judge was bound to dismiss the plaintiffs'' suit for possession of the disputed properties and he has certainly dismissed the plaintiffs'' suit so far as that relief is concerned; but without any application for amendment he has granted the plaintiffs a decree for redemption as against the defendants.

The decree is open to various objections. In the first place it was not open to the learned Subordinate Judge to convert a suit for possession into one for redemption. In the second place a decree for redemption could not lawfully be given to the plaintiffs in a suit in which the mortgagor is not a party.

Mr. G.P. Das, appearing on behalf of the respondents, asks for permission to amend the plaint and to bring the mortgagor on the record at this stage. We do not think that we should give him this permission. His clients, who were parties to the other litigation to which I have referred, knew perfectly well that their suit for possession was misconceived. It was open to them at that time to withdraw the present suit and to institute a fresh suit for redemption This they declined to do, and, in my judgment, the learned Subordinate Judge was not right in giving the plaintiffs a decree for redemption.

I would allow the appeal, set aside the judgment and the decree passed by the Court below and dismiss the plaintiffs'' suit with costs in both the Courts.

I should mention here that the hearing of the present suit was stayed while the other suit was pending in this Court. It was therefore that the other suit was decided on 21st April 1925 and the present suit was not decided till the 10th January 1928. There was no excuse whatever for the plaintiffs not to take the proper steps in the matter.

Kulwant Sahay, J.

I agree.