Muni Lal Seth and others vs Mahabir Ram Halwai

Macpherson, J.—The plaintiff''s suit having been decreed by both the Courts below, the defendants have preferred this second appeal.

The submissions of the plaintiff were briefly as follows: His father Anhach and two uncles Balgobind and Halkhori had a joint shop at Chatra. First Balgobind, then Anhach, and finally Halkhori died, the two uncles without issue. His mother took the plaintiff, then a minor, to her father''s house and on attaining majority he returned to Chatra and found that the defendants were in wrongful possession of his house and two orchards which they refused to vacate. The plaintiff applied for mutation of his name in the sharista of the landlord; but his prayer was rejected because the defendants were registered therein.

The defences which are material in this appeal, were two the first that Halkhori and Anhach had mortgaged the house to the defendants in 1900 and when the defendants were about to sue, Halkhori, the survivor, asked them to free him from the debt by taking all his properties and verbally sold the house and orchards to them and put them in possession but died before he could execute the deed of sale, so that they had been in possession for twenty years as owners and the suit was barred by limitation. They further pleaded that if it should be held by the Court that they were not entitled to possession by virtue of right under the sale, they were at least mortgagees in possession and the plaintiff could not get khas possession without paying the entire mortgage dues.

The findings of fact at which the Courts below arrived were that the defence of transfer of the three properties in suit by Halkhori in favour of the defendants in lieu of the mortgage debt on the house, and putting the defendants in possession accordingly, was untrue and that actually the defendants, after the death of Halkhori, wrongfully took possession of these properties in the absence of the minor plaintiff who was sole owner and his mother from the village. Upon these findings they held that in law the defendants could not resist the plaintiff''s claim for recovery of possession of the house and still less of the orchards. In second appeal Mr. B.C. De contends that even on the findings of fact the defendants-appellants cannot be ejected, at least from the house, until their mortgage is redeemed. But consideration of all the cases which he has cited, appears to show that they are inapplicable to the circumstances here found. The mortgage on the house was a simple mortgage repayable in 1906. The appellants did not enter upon the mortgaged house in virtue of that mortgage, whether with or without consent of the mortgagor, but entered upon the house, and the orchards purely as trespassers. As regards the orchards, the trespassers could have no public claim to remain in possession while the claim as to the house is in my judgment governed by the decision of their Lordships of the Judicial Committee in Shaikh Hub Ali v. Wazir-un-nissa, (1906) 28 All 496 = 33 IA 107 (PC), where it was held that the mortgagee having taken possession as a trespasser could be sued by the mortgagor in ejectment without offering to redeem.

Accordingly the present plaintiff-respondent, in whose case there is no question of limitation, is entitled to recover possession from the appellants who are trespassers not only of the orchards which were not mortgaged, but of the house also which was covered by a simple mortgage now long barred by limitation. I would dismiss this appeal with costs.

Varma, J.

I agree.