L RAM RATAN LAL Vs. MTGAURA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of Rs. 378-3-0 principal and Rs. 134-13-0 interest, in respect of certain land revenue which had been paid by the plaintiff-appellant by reason of a default on the part of the cosharers of mauza Mohammad pur Gularia, mahal Soem. Mt. Gaura and 34 other persons were cosharers in this mahal. Mt. Gaura had executed a simple mortgage of her share in this property in favour of the plaintiff-appellant. She had also passed a mortgage in favour of one Ujagir Singh. Ujagir Singh put his mortgage into suit, obtained a decree against Mt. Gaura and purchased her interest in the property himself. Plaintiff brought a suit for enforcement of his prior lien by suit No. 136 of 1917 which was directed both against Mt. Gaura, the mortgagor, and Ujagir Singh, the puisne encumbrancer, who had in the meantime already purchased the property. The plaintiff's claim was decreed and in execution of the final decree obtained by him, the interest of Mt. Gaura in the property was purchased by the plaintiff decree-holder on 20 December 1920.

(2.) Mt. Gaura was the cosharer of this mahal at the time of the auction sale. All the other cosharers who are defendants in the present action including Mt. Gaura, were in arrears of Government revenue to the extent of Rs. 378-3. The factum of the cosharers being in arrears to the above extent was notified at the time of sale, but the property itself does not appear to have been sold subject to the lien in favour of the Government. The Government, however, recovered the entire amount, namely, Rs. 378-3 from the plaintiff at the time of the auction purchase. The present suit has been instituted for recovery of that amount from the cosharers together with interest.

(3.) The defendants denied their liability and pleaded that the position of the plaintiff was that of a volunteer and he was not entitled to recoup himself by contribution or otherwise from the defendants. This plea found favour with the trial Court which dismissed the suit upon the ground that the payment made by the plaintiff was voluntary and the suit was misconceived. The lower appellate Court has affirmed this decision.