Sugrive Misser vs Jogi Missir

B.K. Mullick, J.—This appeal arises out of a suit for redemption in respect of 4.76 acres of land alleged to constitute a raiyati holding, which was mortgaged by Ramgolam Misser and Ramdeni Misser, the predecessors of the plaintiffs, to one Rameshwar who is alleged to be the predecessor of the defendants. The suit was contested by defendant No. 1, who denied that Rameshwar was joint with him and asserted that the holding had always belonged to him and that Rameshwar never had any interest therein.

The Munsif found that the defendants had entered into possession through Rameshwar on the strength of the zurpeshgi mortgage and that the allegation that the defendant had title to the holding was false. At the same time the learned Munsif found that in or about 1901 the Maharani of Dumraon, the admitted landlord, attempted to attach and sell certain lands, which included a part of the present holding, in execution of a decree for arrears of rent obtained by her against the present plaintiffs. The defendant No. 1 thereupon brought a title suit against the Maharani joining the present plaintiffs as pro forma defendants and obtained a declaration in 1902 that a part of the land, which was about to be attached and which corresponds to plots Nos. 74, 76, 77, 148, 154, 162, 164, 168, 149 and 175 in the present suit, was not liable to be attached on the ground that he had raiyati interest therein. The learned Munsif was of opinion that this decree was res judicata between the defendant No. 1 and the plaintiffs, and, therefore, the plaintiffs were not entitled to recover these plots in the present suit. The learned Munsif also found that since 1901 the defendant No. 1 had been asserting a right as occupancy raiyat in respect of these plots adversely to the plaintiffs'' title as mortgagors and that, therefore, the suit in respect of these plots was also barred by limitation.

The learned Subordinate Judge in appeal agreed with the Munsif that the defendants got possession as mortgagees and that they had failed to prove that any part of the lands in suit was the first defendant''s ancient occupancy holding. He also held that the Munsif''s decisions with regard to res judicata and limitation was incorrect and he gave the plaintiffs a decree entitling them to redeem the whole of the lands in suit on payment of a sum of Rs. 160.

The first point urged by the learned Vakil for the defendant-appellant before me is that the learned Subordinate Judge was wrong or the point of res judicata.

Now I have to observe at the outset that the learned Vakil has not supplied me, as required by the rules of this Court, with any copies of the translations of the plaint, written statement, decree and judgment upon which he relies for this part of his argument. It is almost impossible to decide whether a former judgment is res judicata unless we have all the pleadings before us. I have, however, with the learned Vakil''s assistance examined the vernacular plaint and the judgment in the suit of 1901, upon which the learned Vakil relies and which are on the record of the case before me. It appears from these documents that the defendant No. 1 claimed no relief against the present plaintiffs, who were impleaded as pro forma defendants. It was not alleged in the plaint that he had any cause of action against them. His suit was directed against the Maharani of Dumraon who was defendant No. 1, and he desired to establish that he and not the plaintiffs was the tenant under the Maharani. He had a cause of action against the Maharani, namely, that the Maharani had obtained a decree for arrears of certain lands alleging them to be the holding of the present plaintiffs. There is a faint allegation in the plaint that that decree was collusive, but there is no allegation that there was any collusion between the Maharani and the present plaintiffs. The suit was aimed at the Maharani for the purpose of setting aside the decree on the ground of fraud, but in the absence of any specific allegation against the pro forma defendants in that suit that they were parties to the fraud and in the absence of any claim for relief as against them, it cannot be said that there was any question directly and substantially in issue between them and the plaintiff in that suit. The present plaintiffs were really not necessary parties at all and were impleaded, not because any relief was claimed against them, but be cause they might assist the Court in the adjudication of the claim against the real defendant, the Maharani of Dumraon. It would seem that the position was so regarded by the present plaintiffs, for they took no trouble to appear in the suit. The Maharani of Dumraon did appear, but finally allowed the suit to be decreed without any substantial contest.

In my opinion the case of Malhi Kunwar v. Imam-ud-Din 27 A. 59; 1 A.L.J. 363, is somewhat similar to the case now before me. In that case the plaintiff in the first instance brought a suit for redemption of a mortgage against two sets of defendants, alleging that he had paid half the mortgage money to the second set and the remaining half only was due to the first set. The Court held that the second set of defendants had no concern with the land and that the whole amount of the mortgage-money was due to the first set and he ordered redemption on that footing. The plaintiff thereupon brought a second suit to recover from the second set of defendants what he had paid to) them on account of the mortgage, but it was held that the decision in the first suit did not operate as res judicata upon the point whether or not the second set of defendants were interested in the mortgaged property, and that it was open to these defendants to re agitate this matter as between themselves and the plaintiff in the second suit. I think therefore the decision of the learned Subordinate Judge on the point of res judicata is correct and that it is not necessary for the present plaintiffs to set aside the decree of 1902 before proceeding to redeem.

The second point urged by the learned Vakil is that there is no clear finding by the learned Subordinate Judge that the lands in suit were not the ancestral occupancy holding of the defendant No. 1. It appears that the case made by the defendant No. 1 before us is that he has succeeded to Rameshwar''s property as a distant agnate upon the death of Rameshwar''s son and that Rameshwar took a mortgage of the lands now in suit from persons who had no title to the same. The learned Munsif, however, clearly found that Rameshwar got into possession upon the strength of the zurpeshgi mortgage which was executed so far back as 1883. He also found that the defendants got into possession through Rameshwar and that they were not in possession before the mortgage upon the strength of a title independent of that of Rameshwar. The learned Subordinate Judge, although he has not examined the evidence upon the point in any details, has come to the same conclusion.

I am asked by the learned Vakil to remand the case for a fuller consideration of the evidence, but I think it is unnecessary to do so, having regard to the form that the litigation took in the Courts below. It would seem from the judgment of the learned Subordinate Judge that the defendants'' main attack was directed to the points of limitation and res judicata. The finding of fact, therefore, being conclusive in second appeal, what is the position as regards limitation? The defendant No. 1 is found to have no independent title and to have been always in occupation as a mortgagee. He was, therefore, in the position of a trustee in regard to the mortgagors and it was not open to him to set up any claim of title adverse to their title. He could not, therefore, by adverse possession have acquired a prescriptive title to plots Nos. 74, 76, 77, 148, 154, 162, 164, 168, 149 and 175. The point of limitation, therefore, must fail. This disposes of all the points argued before me and the appeal is dismissed with costs.