RADHA NATH MAITY Vs. RAM CHANDRA NAYEK

JUDGEMENT

(1.) Two brothers Ashutosh Maity and Behary Maity held the suit land as tenants under the appellants. Behary died leaving his widow Rashi Dei as his sole heiress. The appellants as landlords brought a rent suit against their tenants Ashutosh and Rashi Dei and in execution of the decree obtained therein purchased the disputed holding on 19-11-1936. Prior to the institution of the rent suit Ashutosh had purported to mortgage the suit land to the contesting respondents' father Keshab Nayek by a duly registered deed sometime in the year 1928. The amount secured by the deed was Rs. 300/-. In the mortgage suit which was brought in the year 1940 the appellants as rent sale purchasers as aforesaid were impleaded as defendants but eventually the suit was dismissed against them for non-prosecution upon their plea of a paramount title. In execution of the mortgage decree the property was purchased by the mortgagee-decree-holders (who are the contesting respondents before me) on 17-6-1944 but the respondents' attempt to take possession was resisted by the appellants and eventually the latter's application under Order 21, Rule 100, Civil P. C. was allowed by the court on 28-4-1945.

(2.) Within a year from the date, last mentioned above, said respondents brought the present suit under Order 21, Rule 103 of the Code on 27-4-1946 on the allegation inter alia that at the time of the mortgage to their father Keshab Nayek the mortgagor Ashutosh was the 16 annas owner of the disputed holding, he having obtained, as the presumptive reversioner, a surrender in his favour from his deceased brother's widow Rashi Dei, that the full 16 annas share of the holding was duly mortgaged by Ashutosh to their father Keshab Nayek who acquired the entire holding at his mortgage sale & as the said mortgage had not been annulled by the appellants after their auction purchase at the rent sale the respondents' title to the suit land must prevail over the appellants'.

(3.) The suit was contested by the appellants whose main defence was that it was barred by limitation and also by Section47, Civil P. C. and that the mortgage had been duly annulled by them and further that the story of Rashi Dei's surrender in favour of Ashutosh was false. This last defence has been accepted by the two courts below but they have concurrently overruled the appellants' other pleas.