Decided on December 05,1901

DEBI DIN Respondents


John Stanley, C J and Burkitt, J - (1.) This is an appeal from the decree of the Subordinate Judge of Farrukhabad, dismissing the plaintiff's suit. The facts are very simple. The defendant, who was first mortgagee of some property called mauza Piprauli, brought a suit on foot of his mortgage against the mortgagor, and on the 21 of April, 1897, obtained a decree for the sale of the mortgaged property in satisfaction of the mortgage debt.
(2.) The plaintiff in the present suit, who, with his brother, is in possession of the mortgaged property, claims that he and his brother are in such possession under, and by virtue of, a usufructuary mortgage, dated the 15 of March, 1889, and made in their favour by the mortgagor subsequent to the date of the defendant's mortgage. The plaintiff and his brother were not made parties to the defendant's suit, and they contend that the omission to make them parties was contrary to the provisions of Section 85 of the Transfer of Property Act, and that the defendant is not therefore entitled to have a sale in execution of his decree. The plaintiff has instituted this suit accordingly, and in the prayer to his claim, seeks a declaration that mauza Piprauli is not saleable in execution of the defendant's decree, but no other relief. In his written statement Debi Din alleged, among other things, that the amount of the plaintiff's mortgage has been satisfied by the usufruct, and that the plaintiff has no longer any concern in the mortgaged property.
(3.) No evidence was given by the plaintiff in the Court below to prove that his mortgage was subsisting. He contended that the burden of showing that his debt had been paid off lay on the defendant, while the latter maintained that the onus of proving that his mortgage was subsisting lay on the plaintiff. The learned Subordinate Judge decided in favour of the defendant's contention and dismissed the suit.;

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