BELI RAM Vs. SADA RAM

JUDGEMENT

(1.) This is a plaintiff's application in revision, and it arises in the following circumstances.

(2.) One Mt. Waziru conferred occupancy rights in 46 bighas odd land on her sonin- law Rajmal for a consideration of Rs. 1,000/-. One Finu, claiming to be a reversioner, filed a suit impugning the transaction. That suit was decided in 1985 and it was held that the reversioner would be entitled to get possession on the property on payment of Rs. 416/-. That was the extent to which the aforesaid consideration of Rs. 1,000/- was held to have been justified by legal necessity. It appears that this sum of Rs. 416/- represented the amount which Rajmal had to pay to one Malagar in order to redeem a mortgage in his favour by Mt. Waziru. On the death of Mt. Waziru, but after the expiry of the period of limitation prescribed for such a suit, the father and uncles of the present plaintiffs filed a suit for recovery of possession of the aforesaid 46 odd bighas of land as reversioners against Rajmal. One Anant Ram acted as attorney for the plaintiffs in that suit, and he obtained a decree in favour of the plaintiffs of that suit for recovery of possession of the aforesaid 46 odd bighas of land on a compromise on payment of the aforesaid Rs. 416/-. It was for repayment of this sum of Rs. 416/- that the plaintiffs of the said suit, i.e., the father and uncles of the present plaintiffs, executed a sale-deed on the 3rd of Poh 1999B., in favour of the said Anant Ram and the latter's brother Sada Ram. The property alienated under this sale-deed consisted of 18 bighas of land out of the aforesaid 46 odd bighas. Thereupon the present suit was filed by the sons of one of the vendors and nephews of the remaining three vendors against the said vendees, Anant Ram and Sada Ram, for a declaration that the alienated land being ancestral and the sale not having been made for legal necessity, the alienation was not binding on the reversion after the death of the vendors. These vendors were also impleaded as defendants in the present suit. The suit was dismissed by the trial Court and the plaintiffs' appeal met the same fate in the Court of the District Judge, and now they have come up in revision.

(3.) The learned counsel on behalf of the plaintiffs-petitioners says that the present revision has been filed under paragraph 35(1)(b) of the Bilaspur (Courts) Order, 1949, and that therefore under the fourth proviso to that paragraph this Court should treat the matter of this revision as if it were an appeal. In order to appreciate the force of this argument, it is necessary to set forth here the ground of revision pressed before me. That ground is that Rajmal having paid off the aforesaid mortgage debt was subrogated to the position of a mortgagee, that likewise Anant Ram and thereafter the aforesaid vendors (the father and uncles of the present plaintiffs) were also subrogated to the same position, and that therefore the said mortgage was by reason of the sale-deed dated the 3rd of Poh, 1999B, converted into a sale. It was further argued on the basis of the ruling in 'Rajendra Singh v. Abdul Ghani', 25 Pun Re 1917, that such conversion of a mortgage into a sale did not constitute a legal necessity.