GANGA PRASAD SINGH Vs. MTGANESHI KUER

JUDGEMENT

(1.) This appeal was referred by me to a Division Bench because it was contended that there are a large number of contradictory decisions on the question whether a person in the position of the plaintiff can only be allowed to redeem and cannot insist on his right to take possession. The facts must be shortly stated. Mt. Manturna Kuer and Baijnath Singh and others had one bigha of kast lands in a certain village out of which Mt. Manturna Kuer claimed 5 kathas, but Baijnath's claim was that this belonged jointly to him and to the Musammat. In the year 1922 or 1923 the title of Baijnath to 2 kathas out of this 5 kathas was declared in a suit which he instituted against Mt. Manturna Kuer. On 9 March 1926, he executed a money 9 decree which he had obtained against Manturna Kuer and her 2 kathas was sold and purchased by Jagmohan who on 5 October sold it to one Ram Sagar. Baijnath died issue-less and his 2 kathas went to one Prahlad, who already held 5 kathas in this land. Prahlad sold 12 dhurs to Ram Sagar so that Ram Sagar became entitled to 2 kathas which he had already purchased from Jagmohan and this additional 12 dhurs, that is to say, to 3 kathas and 2 dhurs. On 12 September 1935, Ram Sagar sold this 3 kathas and 2 dhurs to the plaintiffs. The plaintiffs case is that they took possession as the result of h this sale.

(2.) Before the title of Baijnath was declared against Mt. Manturna Kuer she had executed a mortgage on 18 April 1922 of the entire 5 kathas in favour of defendant 1, the appellant before us. The mortgagee in the year 1932 instituted a Suit No. 43 of that year to enforce his mortgage but against Mt. Manturna alone. He evidently was not aware of the decision of the suit of 1923 nor of the auction- purchase by Jagmohan and the sale by him in favour of Ram Sagar. The suit was decreed in favour of defendants 1 to 4--defendant 1 is the mortgagee and the other defendants are his sons--on 23 January 1934. The mortgaged property was put up to sale and purchased on 25 May 1935, by the mortgagees who obtained a formal delivery of possession on 14 June 1936. By this delivery of possession, the plaintiffs were dispossessed and their application under Order 21, Rule 100, Civil P.C. was rejected. Accordingly the plaintiffs instituted the suit giving rise to this appeal on 28 January 1939, for a declaration that as a result of their purchase in September 1935, they had a right to obtain possession against the mortgagee auction-purchaser who had failed to implead as a defendant in his mortgage suit a person with whom the equity of redemption rested at that time.

(3.) The trial Court held that before the execution of the mortgage bond it had already been decided by suit that Baijnath Singh had half share and that defendant 5 could not claim the entire share and, therefore, the defendant had no right to mortgage the entire share including the share of Baijnath. With regard to the remaining land covered by the mortgage executed by Manturna Kuer the trial Court held that the sale and dakhal-dehani and decree of the defendant are not binding on the plaintiffs and, therefore, he awarded them possession as claimed. He also gave a finding that the alternative relief of redemption cannot arise because the plaintiff cannot be allowed to redeem the mortgage piecemeal even if the question of redemption arises. Against this decision there was an appeal to the learned Subordinate Judge who took the same view. He negatived the argument advanced before him that as the plaintiff himself had aked for redemption he should be allowed to redeem by observing: His prayer for redemption was not the only course left to the plaintiff in the present case and as the plaintiff got the first relief which was for khas possession and mesne profit it is open to him not to press this alternative relief. Hence the second appeal to this Court.