Loknath Singh and Others vs Santokhi Missir and Others

Ross, J.—This is an appeal by Defendants Nos. 1 to 4 in a suit brought by the plaintiffs to redeem a mortgage granted to Defendants Nos. 5 to 11. The defence of Defendants Nos. 1 to 4 was that they were not necessary parties. They set up a title as mokarraridars derived from a period long anterior to the plaintiffs'' title and independent both of the plaintiffs and of the defendants. The Munsif gave a decree for redemption against Defendants Nos. 5 to 11, and as regards Defendants Nos. 1 to 4 a declaratory decree, to the effect that these defendants had no interest in the property, has been given. An appeal against this decision was dismissed by the District Judge.

The only point taken in second appeal on behalf of Defendants Nos. 1 to 4 is that as they set up a paramount title, their title should not have been adjudicated in this mortgage action. Reliance was placed on the decision in Jaggeswar Dutt v. Bhuban Mohan Mitra [1906] 33 Cal 425 where it was pointed out that:

It is not competent for the mortgagee to make as party defendant, one who claims adversely to the title of the mortgagor and mortgagee. He is a stranger to the mortgagee, has no connexion with the mortgage, and as his adverse claim of title cannot in any way be affected by the mortgage suit, in which he has no interest, he cannot be made a party for the purpose of litigating such claim of title.

The same principle will apply to a mortgagor seeking redemption. The respondents, however relied upon two decisions of this Court: one Khub Lal Upadhya Vs. Jhapsi Kundu and Others, and the other Zakir Raza v. Madhusudan Dass [1918] 4 Pat. LW 417. In the latter case the contention was overruled simply on the ground that it was not raised at any stage of the case until the final reply of the vakil for the appellant; and it was held that at that stage the argument could not be entertained. In the former case it was pointed out that if the tenants-defendants in that suit who had set up a paramount title appeared and contested the allegation set out in plaint as in fact they did and set up a paramount title, and if issues were framed with their concurrence, as in fact happened, they could not afterwards object to this course being adopted. We have looked into the records of that case and find that in their written statement the tenants-defendants did not say that they were not necessary parties and no issue on this point was raised.

Now in the present case the Defendants. Nos. 1 to 4 asserted that they were not necessary parties and a preliminary issue on this point was decided against them and it was only after that decision that the question of their title was gone into. Now, in my opinion, in view of the Calcutta decision above referred to, which is only one of many authorities on the subject, the trial Court decided this issue wrongly; and when Defendants Nos. 1 to 4 set up their paramount title and pleaded that they were not necessary parties, they ought to have been dismissed from the action since they were not parties to the mortgage or in any way concerned with it.

In this view, the appeal of these defendants must be decreed with costs and the suit against them dismissed with costs throughout.

Das, J.

I agree.