N. N. Mitbal, J. - (1.) THE order under challenge in this appeal was passed by the court below rejecting the plaintiff's application for temporary injunction against respondent No. 2.
(2.) THE facts, stated briefly, are that the plaintiff and defendant No. 1 are real brothers having migrated from the area now constituting Pakistan as evacuees. In 1954 Govt. of U. P. with a view to rehabilitate the evacuee brothers granted plot No. 18 situate in Darbhanga Castle compound having an area of 1853 sq. yards by deed dated ( ? ) jointly to them. For the purposes of this appeal the parties do not dispute that for the sake of convenience both the parties had raised residential houses on different portions of the said land. THE houses are assigned municipal nos. 100 and 101. Defendant No. 1 now lives in house no. 100 and plaintiff in house No. 101. It is alleged that there also had been some sort of family arrangement between them in 1977 but as there is some dispute regarding this matter it would be better if we leave that matter here as nothing really turns on that controversy so far as decision of this appeal is concerned. Admittedly respondent No. 1 is elder of the two brothers and hence the title deed of the land which was executed by the State of U. P. in 1954 jointly in their names appears to have remained with him. As compared to the plaintiff apparently God has been more kind to the defendant No. 1 who became quite affluent over the years. For his expanding business, defendant No 1 approached respondent No. 2 for a loan and the Bank agreed to advance upto rupees thirty lacks against security which included half portion of the plot of land jointly acquired by the evacuee brothers from the State of U. P. in 1954. The defendant No. 1 accordingly equitably mortgaged the land of his share by deposit of title deeds. The plaintiff has felt aggrieved by this use of the joint title deed by defendant No. 1 exclusively for his benefit which is now the bone of contention between them. According to the plaintiff, the defendant No. 1 had no right to utilise the common title deed of plot No. 18 in which he too had one half share for raising the loan from defendant No. 2. Defendants do not deny that the loan has been sanctioned on the security of property of defendant No. 1 which also includes equitable mortgage by deposit of title deeds. The defendants, however, contended that only that portion of plot No. 18 as is underneath house No. 100 belonging to defendant No. 1 has been so mortgaged leaving the remaining land of that plot which is under plaintiff's house No. 101.
(3.) ACCORDING to the defendants, the plaintiff can have no cause for any grouse as his interest in the land is safe and beyond the scope of equitable mortgage. In the absence of any prejudice, the plaintiff had no cause to complain or to bring the suit. The Bank has also clarified that it had no intention at all to proceed against that portion of plot No. 18 which is under House No. 101 and that the same does not form part of security under the equitable mortage executed in its favour by defendant No. 1.;