HARMONGAL NARAIN SINGH Vs. GANAUR SINGH

JUDGEMENT

(1.) The three points taken support of this appeal are (1) that the suit is premature because the zurpeshgi lease did not expire till June 1904 and the suit was brought on the 18th September 1903; (2) that the proper remedy for the plaintiff was to bring a suit to recover possession as the zurpeshgi bond did not provide for the sale of the property in the event of dispossession and (3) that the deed is invalid as the witnesses fail to prove that it was properly attested.

(2.) The plaintiff's suit was brought on a zurpeshgi patta, dated the 16 September 1895, and under the terms of that patta it was stipulated that the plaintiff was to remain in possession until the mortgage loan had been repaid. In the plaint it is alleged that on the 30 Bhadra 1309 (1902), defendant No. 1 executed a deed of sale of half of the mortgaged property in favour of defendant No. 2 and deposited with defendant No. 2 the other half share of the mortgage-money due to the plaintiff and that afterwards defendant No. 1 and defendant No. 2 in collusion dispossessed the plaintiff from the whole of the property covered by the zurpeshgi patla in the beginning of Aswin 1310 (1903).

(3.) The lower Courts have both found that the plaintiff has proved that he has been dispossessed by the two defendants as alleged. Under the circumstances, the provisions of Clause (b) of Section 68 of the Transfer of Property Act would apply and the mortgagee, the plaintiff, would have a right from the date of his dispossession to sue to recover the mortgage- debt. I am unable to hold that either the suit is premature or that the proper remedy for the plaintiff was a suit for possession.