SACHIDANAND PRASAD Vs. BABU SHEO PRASAD SINGH

JUDGEMENT

(1.) The plaintiffs-appellants instituted Title Suit No. 91 of 1950, out of which this appeal arises, for redemption of two usufructuary mortgages created by plaintiff No. 1 and ancestors of plaintiffs Nos. 2 to 6 dated July 5, 1927 and April 15, 1928 in favour of the defendant for Rs.1,000/- and Rs.1,300/- respectively. The mortgage dated July 5, 1927 was in respect of 7.20 acres of occupancy raiyati lands, consisting of four plots Nos. 149, 155, 955 and 957, in village Hichapur under the Tikari Raj. The mortgaged lands were part of a larger holding of 23.69 acres under khata No. 59, and the annual rent of the entire holding was Rs. 153-3-0. The mortgage deed provided that the mortgagee would pay Rs. 33-14-9 out of the total rent payable to the landlord and the mortgagors would pay the balance rent. There was default in payment of rent for several years. The landlord obtained a decree for arrears of rent, and at the rent sale held on June 18, 1934, the mortgagee-defendant purchased the Hichapur lands in the farzi name of Dwarkalal.

(2.) The mortgage dated April 15, 1928 was in respect of 7.20 acres of lands in village Utrain under kahas mahal. The mortgaged lands were part of a larger holding of 19.88 1/2 acres in khata No. 269. The rent of the entire holding was Rs.155-4-0. The mortgage deed provided that the mortgagee would pay Rs.68-10-9 out of the total rent and the balance rent would be payable by the mortgagors. There was default in payment of rent for several years. Certificate proceedings were started for the recovery of the arrears of rent, and at a certificate sale held on January 22, 1934, the Utrain lands were purchased by the defendant in the farzi name of Deonarain.

(3.) It appears that out of the sum of Rs.33-14-9 payable by the mortgagee annually on account of the rent of the Hichapur lands the mortgagee consistently paid Rs.33/- annually but did not pay the balance sum of 14 annas 9 pies, whereas the mortgagors consistently defaulted in payment of the sum of Rs.119-1-3 payable by them annually on account of the total rent. It also appears that out of the sum of Rs.68-10-9 payable by the mortgagee annually on account of the rent of the Utrain lands, the mortgagee consistently paid Rs. 68/- annually but did not pay the balance sum of 10 annas 9 pies, whereas the mortgagors consistently defaulted in payment of the sum of Rs.86-9-3 payable by them annually on account of the total rent.