KALI KRISHNA CHOWDHURY Vs. TARA PROSANNA CHONGDAR

JUDGEMENT

(1.) This appeal is preferred by the plaintiff against the decision of the learned District Judge of Birbhum dated the 20th January 1916 affirming the decision of the Munsif of Bobpur. The plaintiff sued to recover possession of certain property. He acquired his title at a sale in execution of a mortgage decree. The point that was argued and decided in the Courts below was this: Whether the plaintiff s suit was not barred on the ground that the defendant No. 1 had been in possession of the property adversely to the mortgagor for more than twelve years It is, however, suggested that the possession was equally adverse as against the mortgagee. The facts are not really in dispute. This property originally belonged to one Banwari. Banwari was the husband of the defendant No. 3. Banwari had decrees passed against him. His properties were put up for sale and the present property together with other properties was purchased by the defendant No. 3, his wife, at a sale in execution. It has been found that the sale was a real transaction and not a benami one on behalf of her husband. The sale took place on the 10th June 1895 and it was not confirmed until the 15th August of the same year. In the meanwhile, the defendant No. 3 mortgaged the property to the defendant No. 2 on the 25th June 1895. A suggestion has been made in this case that the defendant No. 3 was never in actual possession of this property. That point was not raised in the Courts below and it must have been deliberately abandoned, owing to the fact that the wife s purchase was a purchase not against her husband s interest and it was not probable and perhaps not thought arguable that the husband was resisting his wife while she was trying to obtain possession of the property. That point was not raised in the Courts below and I am quite satisfied that it was deliberately abandoned having regard to the relationship existing between the parties. In the meantime, the defendant No. 1 on the 5th July 1895 brought a suit to recover rent against Banwari, that is, the husband--the registered tenant. He obtained a decree, brought the property to sale and purchased it himself and took possession on the 24th September 1896. It is found as a fast that this was not a rent suit for the whole of the tenure. It was a rent suit for a part of the tenure and what the defendant No. 1 purchased in execution against Banwari was the right, title and interest of Banwari, which was nothing. Therefore, the defendant No. 1 took possession and continued to be in possession without having, in fact, acquired any interest in the tenure. The defendant No. 2 in 1908 brought a suit to enforce his mortgage against the defendant No. 3, The suit was decreed and the property was brought to sale under the decree on the 15th May 1911 and purchased by the plaintiff. On the 3rd November 1913, the plaintiff brought the present suit.

(2.) The only question we have got to consider in this appeal is that which was raised in the Courts below. The other points raised by the respondents, it is quite dear, are not open to the respondents in this appeal. I have already dealt with the question of possession. That obviously was not raised because it could not be raised. The second point was what would be the effect of the defendant No. 1 s purchase in execution of the rent decree? What was purchased by the defendant No. 1 was not the whole of the tenure but a portion thereof. Therefore, only the right, title and interest of Banwari passed to him, which was nothing. The third point was whether the respondent No. 1 would not have the right to redeem the plaintiff. He would have the right if ha had shown that he had a subsisting interest in the property which would be avoided by the sale in execution of the mortgage decree. Clearly he had no interest, on the facts found by the learned Judge. Therefore, we come back to the point decided by the learned Judge of the lower Appellate Court and that is whether the possession of a mortgaged property by a parson claiming adversely to the mortgagor was adverse as against the mortgagee from before the mortgagee had the right to possess the property. There are two decisions of this Court to the effect that such a possession would not be adverse. The first decision is Aimadar Mondul v. Makhan Lal Dey 33 C. 1015 : 10 C.W.N. 904, and the other is the decision in Priya Sakhi Debi v. Bireshwar Samanta 37 Ind. Cas. 277 : 44 C. 425 : 21 C.W.N. 177 : 27 C.L.J. 212. We mast follow these two cases and, having regard to the two cases, it is Quite clear that the decision of the learned District Judge of the lower Appellate Court cannot he supported. In that view, we set aside the judgment of the learned Judge of the lower Appellate Court and, in lieu of the order dismissing the plaintiff s suit, we make a decree that the plaintiff do recover possession of the property sued for and remit the cage to the Court of first instance for the purpose of ascertaining the mesne profits payable to the plaintiff. The respondents will pay to the appellant his costs in this Court and also in the lower Courts. Walmsley, J.

(3.) I agree.