RAJESWARI DEVI Vs. BHUTNATH MUKHOPADHAY

JUDGEMENT

(1.) This is an appeal by the Plaintiff and is directed against a judgment and decree passed by the Subordinate Judge, first court, Howrah, in Title Suit No. 40 of 1946. The suit was instituted in the trial court by Plaintiff Shrimati Rajeswari Devi for recovery of has possession of a plot of mourashi mokarari land measuring more or less 12 cottas upon declaation of her auction-purchased title thereto. The suit was contested by Bhutnath Mukherjee, Defendant No. 1, in his capacity as Receiver to the estate of deity Sri Sri Iswar Mahakal Jiew Thakur, and was dismissed by the trial court. So the Plaintiff has preferred this appeal.

(2.) The decision of the appeal turns on a question of law, viz., whether a certain purchase, dated September 2, 1929, is hit by the doctrine of lis pendens. It will be necessary to set out the following undisputed facts in order to understand the point of law involved in the case.

(3.) The disputed property described in the schedule of the plaint belonged at one time to one Jaharlal Nandi, father of Bipad Bhanjan Nandi, pro forma Defendant No. 6, in the trial court, in mourasi mokarari right. Jaharlal Nandi mortgaged this property along with two other items of properties with one Durga Prosad Sukul on Karticlc 23, 1332 B.S. for a foan of Rs. 1,000. This property was item 3 of the mortgage deed. 'The mortgage debt not having been paid, Durga Prosad Sukul's heir and daughter, Shrimati Chinurani Debi, instituted Title Suit No. 503 of 1928 against Jaharlal Nandi in the second court of the Munsif at Howrah for enforcement of the mortgage. One Ram Nehar Singh was also made a party Defendant in that suit because he was a second mortgagee of some of the properties mortgaged with Durga Prosad. Chinurani and Jaharlal filed a joint petition of compromise (Ex. D) on September 2, 1929, whereby Chinurani released item 3 of the mortgage, that is, the disputed property of this suit, from the charge on receipt of Rs. 500 from her debtor Jaharlal who sold this property on the same day to Chandi Charan Banerjee and two other persons, Defendants Nos. 3 to 5 of the trial court (the name of Defendant No. 3 was subsequently, struck out from the plaint), in satisfaction of a prior mortgage in their favour and for a consideration of Rs. 5,000 out of which Rs. 505 only was received in cash by Jaharlal (vide, kabala, Ex. A(l)) The amount of Rs. 500 was paid to Chinurani from this sum of Rs. 505. The trial court instead of recording the above compromise dismissed the entire suit on December 12, 1929, as no evidence was adduced by Plaintiff Chinurani to show what was the value of the remaining two items of the mortgaged properties (vide judgment, Ex. C). An appeal was preferred by the Plaintiff and the appellate court by its judgment, dated October 6, 1931, set aside the order of the trial court and passed a decree in a preliminary form for the entire claim of the Plaintiff, directing that item 3 of the mortgage should be first put up to sale inasmuch as Defendant No. 2 was a subsequent mortgagee in respect of items 1 and 2 only of the mortgage and the Plaintiff could not release item 3 and throw the entire burden on the other two items to the detriment of Defendant No. 2 (vide judgment, Ex. 2). The compromise petition, filed in the trial court was totally ignored by the appellate court with the observation that-it was illegal.