MISRI LAL NAYAK Vs. RAMESHWAR PRASAD
LAWS(PAT)-1960-8-7
HIGH COURT OF PATNA
Decided on August 12,1960

MISRI LAL NAYAK Appellant
VERSUS
RAMESHWAR PRASAD Respondents





Cited Judgements :-

MADDINSETTI SATYANARAYANA MURTHY VS. NUKALA VENKATARAJU [LAWS(APH)-1973-6-5] [REFERRED TO]
MAHAVIR CHAND VS. BUDHMAL [LAWS(RAJ)-1966-12-8] [REFERRED TO]


JUDGEMENT

Kanhaiya Singh, J. - (1.)This is an appeal by the plaintiffs under Letters Patent from the decision of the learned Single Judge dated 15-12-1954, arising out of a suit brought under Order 21, Rule 63 of the Code of Civil Procedure.
(2.)The point involved is simple, but it is not easy to unravel the tangled skein of this proceeding. The dispute relates to plots Nos. 678 and 679, together with a house thereon, situate in the town of Samastipur. The disputed property at one time belonged to one Mst. Bachia. She executed a simple mortgage bond in respect of this house in favour of the firm Damn Sah Halkhori Ram. The mortgage money remaining unpaid, this firm obtained a mortgage decree against Mt. Bachia and in execution of the mortgage decree, purchased the disputed property as far back as 1917. Damri and Halkhori, partners of the firm, died respectively, in October 1926 and March 1928. The firm, Kowever, continued to function even after the death of Damri. The plaintiffs are proprietors of a firm, known and styled as Shanti Nayak Misri Lall, After the death of Damri and Halkhori, the members of their family executed a mortgage deed dated 24-8-1928 in favour of the plaintiffs hypothecating infer alia the disputed property. In 1932, the plaintiffs instituted a suit to enforce the mortgage bond against the members of the family of Damri and Halkhori, including Mt. Jagpatia, the widow of Damri, on the allegation that the family was joint and she was imleaded as an abundant precaution. Jagpatia resisted the suit and set up a paramount title on the allegation that her husband Damri was separate from the other members of his family, that the disputed house belonged exclusively to him and that, on his death, it devolved upon her, to the exclusion of other members. The suit was dismissed against her but was decreed against other members of the family. The plaintiffs went up in appeal to the High Court, and there they exempted Jagpatia from the self and got her name expunged from the record. In due course the mortgage decree was put into execution, and the mortgaged properties were sold on 5-12-1938 and were purchased by the plaintiffs-decree-holders, except the disputed house, which was purchased by one Lalchand Lal. The plaintiffs were delivered possession through - Court, and Mt. Jagpatia filed an application under Order 21, Rule 100 of the C. P. C., complaining of her dispossession and claiming that she was in possession of the lands purchased by the plaintiffs in her own right. Her objection was allowed. Thereafter, the plaintiffs instituted a suit under Order 21, Rule 103 of the C. P. C. and obtained an ox parte decree.
(3.)Lalchand Lal, who had purchased the disputed property at an auction sale, did not apply for and did not obtain delivery of possession through Court. The present suit was brought on 26-7-1948, and although by that time nearly ten years had elapsed after the auction sale, he had not obtained the delivery of possession. It is, however, stated that on 22-12-1950, he brought a suit for possession of the disputed property against the plaintiffs and Jagpatia and that the suit was dismissed on 10-7-1953.


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