Decided on April 02,1952

KAMAL SINGH Respondents


Ramaswami, J. - (1.) The question that arises in this appeal is whether the plaintiffs ought to be granted a decree for redemption and accounts with respect to the properties described in schedule 4 of the plaint.
(2.) The dispute relates to khata No. 7, mouza Abdulpur Bujurg which is recorded in the name of Latafat Hussain and Nezamuddin. On 4-1-1923 Latafat executed an ijara deed with respect to 2 bighas 8 kathas 12 dhurs in the name of Lochan Mahto, who was karta of the joint family, which the defendants first party constitute. In 1934 or sometime before 1934 a rent suit was brought on behalf of the landlords against Latafat and Nezamuddin and in course of the execution of the decree Lochan Mahto made a deposit of the entire decretal amount under the provisions of Sec. 171, Bihar Tenancy Act. The deposit was made on 21-7-1937 and possession was given to Lochan of the entire holding No. 7 on 20-12-1937. A second rent suit was brought in 1937 by the landlords and in execution of the decree defendants 1st party purchased plots 140, 326 and 125 in the name of Sahdeo Singh. On 23-11-1941 the plaintiffs purchased the land described in Schedule 4 of the plaint from Nezamuddin. The property purchased included plots 140 and 328 which Sahdeo had purchased in execution of the rent decree in the year 1939. The plaintiffs brought the suit alleging that Sahdeo was the benami-dar of defendants 1st party and that the purchase of plots 140, 326 and 125 was really on behalf of the latter. It was said that defendants 1st party committed deliberate default in payment of rent, on account of which the rent suit was brought and the holding was put to sale in the execution case. The plaintiffs claimed that the purchase made by Sahdeo in 1939 must be deemed to be for the benefit of the mortgagors and the equity of redemption was not extinguished. The plaintiffs asked that on payment of money which the defendants 1st party had deposited under Sec. 171, Bihar Tenancy Act, a decree for redemption ought to be granted by the court and the plaintiffs should be placed in possession of the plots which they had purchased. The plaintiffs also claimed that defendants 1st party should render accounts of the produce of the land in dispute. The substantial ground of defence was that there was no fraud on the part of the defendants 1st party, that Lochan had advanced the money for deposit from his personal account, that Sahdeo was not benamidar of defendants 1st party and that the plaintiffs were not entitled to a decree for redemption or to rendition of accounts. Upon a consideration of the evidence the Munsif held that defendants first party had really taken ijara in 1923 from Latafat; the purchase in the name of Sahdeo was made on be-half of the defendants 1st party and that the plaintiffs were entitled to redeem the properties which they had purchased. The Munsif directed that a commissioner will be appointed for taking account of the produce of the land from defendants first party and if any balance is struck in favour of the defendants first party, the plaintiffs will have to deposit that amount and the defendants first party will deliver possession of the mortgaged lands to the plaintiffs. But if any balance is struck in favour of the plaintiffs the defendants first party will have to pay that amount also. The defendants first party will be entitled to claim set-off of Rs. 106/- with the statutory rate of interest from 21-7-1937, which is the date of deposit.
(3.) The decision of Munsif has been affirmed by the learned Subordinate Judge in appeal.;

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