SHAMSHER BAHADUR SINGH Vs. LAL BATUK BAHADUR SINGH

JUDGEMENT

(1.) THIS appeal has been filed on behalf of the defendants against a decree for redemption passed by the learned Civil Judge of Pratapgarh. The predecessor-in-interest of one Raja Bhairon Bux singh had executed a mortgage of the zamindari rights in village Tina in favour of the Allahabad bank Ltd. The Allahabad Bank filed a suit on the mortgage, obtained a decree and put the village to sale. It was purchased in auction in the year 1905 by the Rani of Pratapgarh. She obtained possession on 4th of February 1906. On 12th June 1891, Raja Bhairon Bux Singh had mortgaged to one Harpal Singh five plots Nos. 139, 190, 196, 197 and 198 measuring 22 bighas 19 biswas and 9 biswansis. This mortgage was subsequent to the mortgage in favour of the Allahabad Bank limited and the Allahabad Bank Limited in the suit filed by it for sale had impleaded Harpal singh as a subsequent mortgagee. Harpal Singh, however, made no attempt to redeem the mortgage and the village property was sold as mentioned above.

(2.) IT now transpires that these five plots were probably the 'sir' or 'khudkasht' land of Raja bhairon Bux Singh and Raja Bhairon Bux Singh and Harpai Singh claimed under Section 108, clause 10 of the Oudh Rent Act that the plots had become their exproprietary tenancy. This matter was ultimately decided in their favour and it was held that the plots were their ex-proprietary tenancy. The judgment in that case is not before the court but the mortgagee harpal Singh could not have claimed to be an exproprietary tenant and, if he joined with Raja bhairon Bux Singh in the claim, it must have been as a mortgagee from him. From the village papers it appears that after that decision the mortgagee remained in possession and in the village papers a record was made that the mortgagor was Raja Bhairon Bux Singh and the mortgagee in possession was Harpal Singh. The village papers for those years that are on the record uniformly contain the said entries. In the year 1947 the legal representatives of the mortgagor filed a suit for redemption of the mortgage of 12th June 1891, and the suit was decreed by both the Courts and against the decree of the lower appellate Court this second appeal has been filed.

(3.) THE contention of the learned counsel is that no mortgage subsisted after the auction sale in 1905 and the rights, if any, of Harpal Singh, mortgagee, in the mortgage of 12th June 1891, must be deemed to have come to an end. Reliance is placed on the well established rule that, if a subsequent mortgagee is impleaded in a suit on the basis of a prior mortgage and he fails to redeem that mortgage and allows the property included in the first mortgage to be sold, his security in that property ceases and he can no longer claim to redeem the first mort-gage. The proposition that after the auction sale of the year 1905 Harpal Singh or his legal representatives had no right to redeem the mortgage in favour of the Allahabad Bank Limited and get back possession of the property that had been sold in execution of the decree cannot be challenged. The question however is what were the rights of the mortgagor and the mortgagee qua the exproprietary tenancy which came into existence as a result of the auction sale of 1905.