NAURANG SINGH Vs. JANGIR SINGH

JUDGEMENT

(1.) This is a defendants' second appeal against whom the suit for possession by way of redemption was dismissed by the trial Court, but decreed in appeal.

(2.) Originally, Inder Singh, the predecessor-in-interest of the plaintiff-respondents instituted the suit for possession of the half share of the land measuring 22 kanals 10 marlas on payment of Rs. 965/- on the allegations that the said land was shown as mortgaged by him in favour of Naurang Singh and Bhag Singh sons of Tillu Singh in the jamabandi for the year 1965-66. The defendants had earlier filed a suit wherein he was held to be a mortgagor. Thus, he was a mortgagor and Naurang Singh and Bhag Singh along with others were the mortgagees. It was further alleged that he had got the shares of Sunder Singh and others, mortgagees, redeemed from them, but the land, in dispute, in possession of Naurang Singh and Bhag Singh, mortgagees, remained with them as such; hence the suit for redemption thereof. The suit was contested on behalf of the defendants on the plea that the same was barred by time and that the plaintiffs deceased Inder Singh was not entitled to redeem the suit land as he had already redeemed his one-half share which he had purchased from the mortgagor Mst. Karam Bibi, who had succeeded to the mortgagor Bura alias Rura. The trial Court found that the suit was within limitation, but the deceased Inder Singh, plaintiff, was not entitled to redeem the suit land as he had purchased the equity of redemption only to the extent of one-half of the mortgaged land from Mst. Karam Bibi and the remaining one-half mortgaged land was still owned by her. Besides, the plaintiff himself admitted in the plaint that he had already redeemed one-half of the mortgaged land which was in possession of his brothers. Thus, the plaintiff's claim stood already satisfied. He had, therefore, no cause of action against the defendants. Consequently, the plaintiff's suit was dismissed. In appeal, the learned District Judge affirmed the finding of the trial Court on the question of limitation, but reversed its other findings and came to the conclusion that deceased Inder Singh, plaintiff, had purchased the equity of redemption to the extent of the half of the suit land and, thus, he had become a co-mortgagor and, therefore, he could redeem the entire land. According to the learned lower appellate Court, the integrity of the mortgage stood broken and that deceased Inder Singh, plaintiff, was, thus, entitled to seek redemption of the whole of the mortgaged land on payment of Rs. 510/-. In view of this finding, the plaintiff's suit was decreed. Dissatisfied with the same, the defendants have come up in second appeal to this Court.

(3.) The learned counsel for the appellants contended that deceased Inder Singh, plaintiff, had only purchased half of the equity of redemption from Mst. Karam Bibi and that one-half of the mortgaged land was got redeemed by him. Therefore, the present suit for redemption of the other one-half of the mortgaged land filed by deceased Inder Singh, plaintiff, was not maintainable. According to the learned counsel, deceased Inder Singh, plaintiff, was only entitled to one-half of the mortgaged land which he had already got by redemption. The finding of the lower appellate Court in this behalf, according to the learned counsel, was wrong and illegal. In support of the contention, the learned counsel relied upon Ramla Baldev v. Kiran Singh, AIR 1960 P&H 420; Mt. Jagannath Kunwar v. Jaipal, AIR 1933 All 257 (FB); Prithi Nath v. Suraj Ahir, AIR 1963 SC 1041; Ghasiram v. Hiralal, AIR 1954 MadhBha 67 and Abdul Wahab v. Raghunandan Lal, AIR 1945 All 388. On the other hand, the learned counsel for the plaintiff-respondents submitted that deceased Inder Singh, plaintiff, was only one of the mortgagees and not the only mortgagee who had purchased the equity of redemption to the extent of one-half of the mortgaged land and, therefore, he was entitled to redeem the whole of the mortgaged land from the mortgagees. In support of this contention, reference was made to S.60 of the T.P. Act, (hereinafter called the Act). In this behalf, the learned counsel also relied upon Subbarama v. Raghava, AIR 1955 Mad 439; Haji Ali Jan Khan v. Majid-Ud-Din, AIR 1923 All 499; Jagmohan v. Harbans Singh, AIR 1925 Oudh 609, which was approved in Sadasheo Rao v. Roopchand, AIR 1939 Nag 136; Mahtab Rai v. Sant Lal, (1883) ILR 5 All 276 and Fakir Chand v. Babu Lal, AIR 1917 All 401.