SAYED MANSUR ALI Vs. GOVIND CHANDRA SAHU

JUDGEMENT

(1.) THIS is a Defendant -1's second appeal from the reversing judgment dated 4 -9 -1964 of Sri S.N. Misra, 3rd Additional subordinate judge, passed in Title Appeal No. 108/61 of 1963 -64 decreeing the Plaintiff's suit.

(2.) PLAINTIFF filed the suit for declaration that the decree passed in mortgage -suit No. O.S. 35 of 1943 is fraudulent, and for a declaration that the sale of the disputed property held on 16 -4 -1956 in execution case No. 73/49 (proceeding for executing the mortgage -decree) is void and illegal, and for a permanent injunction restraining Defendant -1 not to proceed further in execution.

(3.) THE main contentions of the Plaintiff as appears from his pleading and evidence is that the mortgage -decree was obtained fraudulently and that the Dar -pattapari interest and the Pattadari interest being distinct and separate, and the mortgagor being in possession of the Pattadari interest alone at the time of mortgage, be must be held to have mortgaged only the Pattadari interest irrespective of how the properties in the mortgage -deed were described, that by the date of institution of the mortgage suit, the two interests, viz., the Pattadari interest and the Dar -pattadari interest remained still distinct and separate irrespective of the fact that the Plaintiff has purchased the mortgagors right in 1936, that there was no distinct issue, as to whether the mortgaged -property included the Dar -pattadari interest, in the mortgage -suit, that the Plaintiff as Defendant -7 in the mortgage suit only prayed for a partial redemption of plot No. 510 in respect of which both the Pattadari interest and the Dar -pattadari interest had vested in him, and that such a pleating in the mortgage -suit was not by way of putting directly in issue the question whether the Dar -pattadari interest was the subject -matter of the mortgage or not, but by way of giving a reason for being permitted to obtain a partial redemption.