Pala Singh and Another vs Jhanda Singh and Others

D.K. Mahajan, J.—The matter in this second appeal is simple, though the facts make it seem a little complicated. The land in dispute measuring 48 Kanals was owned by four brothers Gopal Dass, Madan Lal, Radhe Syam and Ved Parkash. Gopal Dass and Madan Lal mortgaged their half interest in the land to Pala Singh and Bhagat Singh, brothers. The mortgage is stated to be with possession and it is common ground that Jhanda Singh was the tenant of the entire land under the brothers. Later on, there was a private partition between the brothers and the land was divided into four equal shares. It appears that Jhanda Singh had been dispossessed by the brothers and the land was taken possession of by the mortgagees. Jhanda Singh brought a suit on 1st March, 1951, in the revenue Court u/s 50 read with section 77(3) of Punjab Tenancy Act for possession of the land forming subject-matter of his tenancy and also claimed damages by way of compensation to the tune of Rs. 4760/-. It is also common ground that Pala Singh and his brother, mortgagees of one-half of the land, were not impleaded as parties to the suit. On 3rd January, 1954, Radhe Shyam is alleged to have transferred his land to the mortgagees by a registered deed of sale for a sum of Rs. 10,000/-. Jhanda Singh''s suit was decreed on 25th January, 1954, and appeal against that decision by Madan Lal and Radhe Shyam also failed. The revenue Court granted a decree for possession to Jhanda Singh and a decree for Rs. 1000/- by way of damages. On 2nd May, 1955, Gopal Dass sold his share of the land to the mortgagee-appellants for Rs. 10,000/-. Jhanda Singh in execution of his decree for possession sought possession of the land and this led to the present suit by the mortgagees on 12th April, 1956. They claimed an injunction against Jhanda Singh that he be restrained from interfering with their possession because the decree on the basis of which he wanted to take possession was inoperative as against them, they being not parties to his suit. The trial Court decreed the suit in its entirety, but the lower appellate Court upheld the decree to the extent of the shares of Gopal Dass, Madan Lal and Ved Parkash, reversing the decision of the trial Court with regard to the share of Radhe Shyam. It is against this decision that the present second appeal has been preferred.

The short contention advanced by Mr. H.L. Sarin counsel for the appellants is that the original owners and the mortgagees should have been impleaded in the suit filed by Jhanda Singh if the decree obtained by Jhanda Singh was to be operative as against the mortgagees. This contention may be true with regard to half of the land which was mortgaged with the mortgagee-plaintiffs but it certainly cannot hold good with regard to half of the land which was free from mortgage. In this connection reference may be made to a Full Bench decision of Calcutta High Court in Niranjan Mukherjee Vs. Soudamini Dasi and Others, and the decision of the Privy Council in Baijnath Lal v. Ramoodeen (1874) 1 I.A. 106 After partition, the mortgage would only be operative on the land which fell to the share of the mortgagors. It would not hold good with regard to the other half of the land. Radhe Shyam had certainly not mortgaged his part of the land and so also Ved Parkash. Both these brothers are alleged to have sold their lands after Jhanda Singh had filed the suit, and these sales would, therefore, be subject to the decree of Jhanda Singh. Unfortunately, Jhanda Singh has not appealed against the dismissal of his suit against Ved Parkash and, therefore, I cannot upset the decision of the lower appellate Court so far as Ved Parkash is concerned. But in view of what I have said there is no merit in the plaintiffs second appeal and it must accordingly fail. Respondent Jhanda Singh will have his costs in this appeal.