GOPI KANTA BHUIYA Vs. KALIKANTA BHATTACHARJYA

JUDGEMENT

(1.) The facts giving rise to this appeal are as follows:

(2.) The land in suit measuring 16 B. 2 K. 15 Ls. of Nisf Kheraj Patta No. 5 was originally part of N. K. Patta No. 1 of Upparabarbhag mouza, Sonkani village of the 30 years settlement. The patta stood in the name of several co-sharers, One of these co-sharers was Bolodev, father of Kalikanta, defendant 6 in the present case. The share of Kalikant's father in Patta No. 1 came to about 26 B. 2 K, 18 Ls. Patta No. 1 was partitioned in partition Case No. 40 of 1928-29 and divided into three separate pattas. Kalikanta, whoso father had died by that time, got a separate Patta No. 5 covering his share of the land, viz. 26 B. 2 K. 18 Ls.

(3.) Kalikanta and his father had mortgaged 16 B. 2 K. 15 Ls. of land to Rahiram on 86th April 1922. Rahiram is the father of defendants 1, 2, husband of defendant 8 and brother of defendants 4, 5. The mortgage consideration was Rs. 600 and the mortgage was with possession. Some five years later, Kalikanta, defendant 6, mortgaged 6 B. 2 K. 4 Ls. to Bantiram on 4th Falgoon 1334 B. S. (1927) out of the land mortgaged to Rahiram. The consideration was Rs. 300. In 1929, Kalikanta instituted a' redemption Suit No. 1569 of 192s against Rahiram. Bantiram was also impleaded along with two other mortgagees with whom we are not concerned in this litigation. It was held that Bantiram and the two other mortgagees were not necessary parties. The suit was dismissed against them. It was decreed against Rahiram. Plaintiff was directed to deposit money due to Rahiram on his mortgage. He failed to deposit the money. Rahiram got the decree made final and in pursuance of the direction in the decree for sale of the mortgaged property got the property auctioned in execution and purchased it. Bantiram, who was not treated as a necessary party in this litigation, sued both Kalikanta, the original mortgagor and Rahiram, the auction purchaser, for the redemption of the property mortgaged to defendant Rahiram and also prayed in the alternative for a decree for the principal amount due to him in addition to some compensation which he claimed for being kept out of possession to which, he alleged, he was entitled under his mortgage. This suit was resisted by Kalikanta, the mortgagor and Rahiram, predecessor in interest of defendants 1-5. Kalikanta pleaded that plaintiff had no right to redeem as he had not paid the consideration for the mortgage in his favour. He also resisted the suit on other grounds with which we are not concerned.