Khub Lal Upadhya vs Jhapsi Kundu and Others

Dawson Miller, C.J.—This is an appeal on behalf of the plaintiff under the Letters Patent from a decision of Mr. Justice Ross over-ruling the decision of the District Judge.

The suit was instituted by the plaintiff to redeem a zarpeshgi mortgage granted to the defendants 1 o 9 in the suit in the year 1898. The facts which gave rise to the subject matter of the present appeal may be shortly stated. In mauza Kiritpur Yusufpur there was a separate patti consisting of a 2 annas 6 pies share. One third of this belonged to two persons named Ambica Singh and Jagdam Singh the remainder being held by other co-sharers with whom we are not concerned. In 1895 the two persons named granted a zarpeshgi mortgage of their one third share to certain persons who are now represented by the defendants 1 to 9 and they entered into possession. The plaintiff subsequently purchased the I whole proprietary interest in the 2 annas 6 pies patti including the one third share the subject of the mortgage. In 1918 the plaintiff brought the present suit seeking to redeem the mortgage and obtain possession of the property unon paying the sum found due on taking an account. In addition to the zarpeshgidars certain other persons now the defendants 10 to 14 were impleaded as defendants although no specific relief was claimed as against them. With regard to them it was alleged in the plaint that they had been recorded by the zarpeshgidars as tenants of certain lands in the direct possession of the zarpeshgidars although in fact they had acquired no interest therein as tenants and that the entries so recorded were false. These defendants may be referred to as the tenant defendants. There was no particular reason why in a suit for redemption the Court should determine any issue relating to the status of the tenant defendants. Any right they might assert as tenants might properly have been determined in a subsequent suit. On the other hand if they appeared and contested the allegations set out in the plaint, as in fact they did, and set up a paramount title and if issues were framed with their concurrence as in fact happened, I hardly think that they could afterwards object to this course if the issues should be decided against them. The fifth issue framed was to this effect:

Have the defendants 12 to 16 "(now renumbered the defendants 10 to 14) "any concern with the lands in suit and have they got any title to the same.

The Munsif before whom the case came for trial found in favour of the plaintiff''s claim for redemption and ordered the zarpeshgidar defendants to make over possession to the plaintiff of the mortgaged property free from all incumbrances if within three months the entire mortgage money should be paid. He also found with regard to the fifth issue that the tenant defendants had no rights in the lands claimed by them and he decided the issue against them.

The tenant defendants appealed to the District Judge who dismissed the appeal. He was of opinion that the tenant defendants were properly impleaded under the provisions of Order 34 Rule 1 of the CPC as persons having an interest or claiming to have an interest in the mortgaged security. He was further of opinion that the plaintiff was right in making the tenant defendants parties thus avoiding multiplicity of suits and that the trial Court was competent to decide the issue. On the merits ho agreed with the conclusions arrived at by the trial Court.

From this decision a second appeal was preferred to this Court and was heard before Mr. Justice Ross. The learned Judge overruled the decision of the District Judge being of opinion that the tenant defendants were not proper parties to a suit instituted by the plaintiff against other defendants to redeem a zearpeshgi mortgage and that the issues which were raised between the plaintiff and the tenant defendants were not germane to the issues in the present suit. The learned Judge was apparency much imp-pressed by a series of cases in which it has been laid down that in a mortgage suit questions which may be raised by the defendants asserting a parmount title to the mortgaged property are not proper questions to have determined in a mortgage suit and no doubt in so far as a Rule exists to that effect it is a very salutary Rule because it is obvious that the matters which have to be decided in a mortgage suit are entirely separate from any questions which may arise between the plaintiff in the suit and defendants who may be asserting a paramount title and if the two matters are allowed to be tried together, embarrassment and great incovenience may arise. In fact it is provided by Order 2 Rule 4 of the CPC that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of Immovable property except in certain cases which are not material to the present dispute and there is a proviso to that Rule which lays down that nothing in this Rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put in possession of the mortgaged property. Although it is, as a general rule, desirable in mortgage suits to exclude all issues between the parties except those immediately concerned with the mortgage suit itself, 1 do not think that it can for a moment be doubted that the Court may, in certain cases, if it should think fit, allow other issues to be determined in such a suit even if they should depend upon separate causes of action and, in fact it seems to me quite clear on reading Order 2 Rule 4 that the Court may, in proper cases, grant leave for that to be done. In the present case I cannot help thinking that if leave had been specifically asked from the Court to allow issue arising between the present respondents and the plaintiff to be determined in this suit that such leave would have been granted. No formal application such as that referred to in Order 2 Rule 4 was made but the respondents as defendants did by their written statement set up a claim to be in possession of some of the mortgaged property as kaskthars asserting that they had been brought on the land by the predecessor-in-title of the plaintiff and had been in possession for a period of over 12 years.

It appears therefore that they were claiming to be in actual possession of some of the mortgaged property and looking at the proviso to Rule 4 of Order 2 it is clear that the plaintiff in a suit for redemption may ask to be put in possession of the mortgaged property. Where the defendant raising a paramount title are those in possession and likely hereafter, if their differences are not settled by the mortgage suit, to resist the possession of a successful plaintiff in a mortgage suit, it would, in my opinion, in many cases, be very convenient to allow the issues which have been raised, to be determined in the mortgage suit so that after determination of those issues the plaintiff will know whether he may or may not get undisturbed possession of the property instead of having to bring a separate suit later on, and in a case like the present I can see nothing embarrassing in allowing these issues to be determined. In any case it was a matter which was within the discretion of the Court and although, as I have said, no formal request was made for the leave of the Court nevertheless where both parties are at arms length, where both parties are setting up varying titles to the mortgaged property, one claiming to be in possession and the other claiming that he has no right or title to be there, it seems to me that it is just the sort of case in which the Court might well grant leave and if the parties raise issues, such as that which were raised in the present case and the Court acquiesces in that course and allows those issues to be tried, I think it may well be said that the issues were raised with the leave of the Court. But assuming even that there was some irregularity in allowing the question of the status of the defendants to be determined in the present suit then that was an irregularity merely and on turning to Section 99 of the CPC it seems clear that an irregularity such as that which I have indicated is no ground at all for setting aside the decision of the lower Court on appeal unless the irregularity is one which affects either the merits of the case or the jurisdiction of the Court. It has not been suggested in this case, nor could it be successfully contended, that by deciding the point in question in this suit the merits of the case were in any way affected. The parties had every opportunity of giving evidence on the point, they gave evidence, and that evidence was considered and a decision was come to. Further as I have already indicated it seems to me that there is nothing in the irregularity, if indeed it be an irregularity, which affects the jurisdiction of the Court, because, as I have already pointed out, under Order 2 Rule 4 it is quite clear that the Court would if it so chose and granted leave have jurisdiction to determine a question such as this. In these circumstances it seems to me that the decision of the learned Judge of this Court cannot be supported and should be set aside. If authority were needed for the proposition which I have just stated it will be found in many cases, three of which alone 1 need refer to: Hare Krishna Bhowmick v. Robert Watson and Co. 8 C.W.N. 365 Syed Zakirraza v. Madhusudan Dass [1918] 4 Pat. L.W. 417 a decision of this Court, and Bhaja Chowdhury v. Chuni Lal Marwari [1906] Cri.L.J. 95. In my opinion the appeal must be allowed the decision of the learned Judge of this Court must be reversed and the decree of the District Judge should be restored. The plaintiff in the suit is entitled to his costs of this appeal and of the appeal before Mr. Justice Ross.

Mullick, J.

I agree.