MEWA WIDOW OF MATRAM Vs. AMAR SINGH

JUDGEMENT

(1.) THE house in dispute originally belonged to one Kharga. It was inherited by his sons Amar Singh and Harnam in equal shares. On 9-4-1925 the brothers mortgaged the whole house for Rs. 300/- with Tagmal. On 10-1-1933 they sold the western half of the house to the mortgagee for Rs. 500/- and the mortgage was redeemed. Thus the eastern half of the house became free from mortgage. Jagmal in his turn sold the western portion to Pat Ram on 6-12-1934 It appears that one Mat Ram filed a suit for the recovery of certain amount against the two brothers. In 1928 the suit against Harnam was dismissed hut it was decreed gainst Amar Singh. In execution of his decree Mat Ram got attached the equity of redemption of Amar singh's share in the house in March 1933. Jagmal filed objections under Order XXI rule 58, Civil Procedure Code, on the ground that he was owner of the western half by purchase and that this portion could not be attached and sold in execution of the decree of Mat Ram. The objections were dismissed on 8-1-1934 on the ground that the same had been filed after long delay. Neither Jagmal nor Pat Ram, his suecessor-in-interest, filed any suit under Order 21 rule 63, Civil Procedure Code. The attached property was sold and the decree-holder purchased it on 15-121933. The sale was confirmed on 18-1-1934. The sale certificate was issued on 9-2-1937 and the decree-holder's case is that he got symbolical pos-session of the property sold in his favour on 1-3-1937. After the death of Mat Ram his legal representatives brought the present suit against Pat Ram. Jagmal etc. for partition of their share in the house. The trial Court framed eleven issues in the ease and decided only some of them. The trial Julge however, dismissed the suit on the ground that there was no valid transfer of symbolical possession of the equity of redemption to Mat Ram. The plaintiffs appealed. The Additional District Judge reversed the findings of the trial Court and came to the conclusion that the plaintiffs got the symbolical possession of the right and interest purchased by them in accordance with law. He, however, held that though jagmal or his successor-in-interest had not filed any suit under Order 21, Rule 63, civil Procedure Code, after the dismissal of the application under Order 21 Rule 58, Civil Procedure Code, it was open to the defendants to prove their title in the property. He then examined the evidence and held that on the date of attachment and of sale, Amar Singh had interest only in half share of the house along with his brother Harnam and therefore the attaching decree-holder could attach and purchase only his (judgment-debtor's) share which was 1/4th of the entire house. The Additional District Judge accordingly granted in favour of the plaintiffs a decree for possession by partition of one-fourth of the house and then remitted issues regarding improvements etc. to the trial Court for decision. Dissatisfied with this decision the plaintiffs have filed this second appeal from order in this Court and their point in the appeal is that they are entitled to get possession of one-half of the entire house instead of one-fourth.

(2.) THE learned counsel for the defendants endeavoured to support the decision of the lower appellate Court on the ground that there was no valid delivery of symbolical possession to the plaintiffs in the present case. If this plea prevails, then the plaintiffs' suit was liable to dismissal. The defendants have, however, not appealed against the decision of the Additional District Judge, and it would be improper to examine this plea in the absence of such an appeal. This is not a case of the nature where the decision would not involve anything but the decision of (the appeal. This objection goes to the root of the case and, if upheld,, the suit necessarily fails and the remand order becomes infructuous. I cannot uphold the defendants' plea and yet maintain the remand order passed by the Additional district Judge. I, therefore, did not permit the defendants' counsel (to argue this point.

(3.) THE learned counsel for the appellants has urged that the defendants are precluded from asserting their title to the western part of the house as they did not on dismissal of their objections under Order 21 Rule 58, Civil Procedure Code, file any suit. There is substance in this argument. Mulla in his well-known commentary has stated the law in these words-