Musammat Nand Kuer and Others vs Kunj Behari Lal and Another

S.A. No. 344 of 1924.

Ross, J,

This is an appeal against a decree of the Subordinate Judge of Patna reversing a decision of the Munsif of Patna in a suit brought by the plaintiff-respondent for various reliefs of which the relief that falls to be considered in this appeal was the recovery of possession of certain property after giving the defendant No. 1 an opportunity to redeem the plaintiff''s mortgage.

The facts of the case are that there was a separate account for 1 anna 18 dams and odd share in Mauza Keshwarpur Digha of which 1 anna 6 cowris 10 bowris belonged to one Mukund. On the 11th of December, 1897, Mukund executed a mortgage of 10 dams out of his share in favour of the plaintiff in consideration of Rs. 860. Subsequently the separate account was sold for arrears of Government revenue and purchased by one Khairuddin who, in 1903, sold the share to one Sri Nath. On the 19th of December, 1905, Sri Nath sold 18 dams to the plaintiff and the balance of the share to defendant No. 2. On the 22nd of March, 1907, defendant No. 2 gave his share in mokarrari to defendant No. 1. There were several sales for default of payment of Government revenue which are not now material. In 1911 defendant No. 1 was entered in the khewat of the Record of Rights as mokarraridar in possession. On the 10th of December, 1912, the plaintiff brought a suit on his mortgage without impleading defendant No. 1. A decree for sale was passed on the 24th of September, 1913, and, in execution of the decree, the plaintiff himself purchased the property and got delivery of possession on the 14th of July, 1916. Defendant No. 1 contested his claim to be entered in the Collector''s register and, as the plaintiff was unsuccessful, he brought the present suit on the 19th of January, 1921, claiming that he first had knowledge of the defendant''s mokarrari in 1916 in the Land Registration Proceedings.

The learned Subordinate Judge found that the plaintiff had failed to prove that the mokarrari deed was a fraudulent and colourable transaction or that he had got possession. He also held that the plaintiff had no notice of the defendant''s mokarrari interest at the date of his suit on his mortgage. But the effect of this finding is weakened by the fact that the Subordinate Judge went on to consider what the situation would be on the supposition that the plaintiff had constructive notice. He held that the plaintiff would still be entitled to possession subject to the defendant No. 1''s right of redemption; and he passed a decree to this effect.

The learned Counsel for the appellant contends that the plaintiff is not entitled to possession and that his remedy is a suit for sale. Reference was made to the decision in Hargu Lal Singh v. Gobind Rai 19 A. 541 : A.W.N. (1897) 154 : 9 Ind. Dec. 350; Madan Lal v. Bhagwan Das 21 A. 235 : A.W.N. (1899) 41 : 9 Ind. Dec. (N.S.) 859 and Balli Singh v. Bindeswari Tewari 35 Ind. Cas. 532 : 1 P.L.J. 133 : 8 P.L.W. 432. In my opinion the contention of the learned Counsel is right. When the plaintiff brought his suit on the mortgage, defendant No. 1 was in possession and the plaintiff was not entitled to claim possession from defendant No. 1, but only to bring a suit for sale. The fact that he did not make defendant No. 1 a party to the mortgage action cannot improve his position. The position now must be as it was then so far as the appropriate remedy is concerned and the authorities above cited make it clear that this remedy is a suit for sale.

The question then arises whether if the present suit is treated as a suit for sale, as may very well be done, it is barred by time. The decision of this question must depend upon when the plaintiff got notice of the defendant''s mokarrari. The learned Munsif held that the plaintiff got notice at the survey proceedings in 1911. This finding was negatived by the learned Subordinate Judge; but, as I have said, his finding is somewhat vague and he has not come to any conclusion as to when the plaintiff actually got notice of the mokarrari.

The case must, therefore, go back to the Subordinate Judge for a definite finding on this point and for a decision whether on his finding on this point the present suit treated as a suit for sale is barred by time or not.

There is a further contention on behalf of the appellant that the plaintiff in acquiring the 18 dams share by purchase in 1905 lost his mortgage lien over the 10 dams share. The contention is that the 10 dams share which was in mortgage was included in the 18 dams share which was purchased. This is the allegation in the written statement, but there is no decision on this point. This matter must also be decided by the learned Subordinate Judge. If he thinks it necessary, he may allow the parties to adduce evidence on this point, subject to the pleadings.

The result is that the appeal is allowed and the decree of the Subordinate Judge is set aside and the appeal is remanded for a fresh decision in light of the above observations. Costs will abide the result.

Civil Revision No. 197 of 1924.

As the decree of the Subordinate Judge has been set aside, it is unnecessary to pass any orders on this application; but it seems clear that it was not intended that costs should be realized from defendants Nos. 2 to 5 as these defendants although they filed written statements did not contest the suit.

Kulwant Sahay, J.

I agree.