MANJU KUER Vs. RAMRATAN SINGH

JUDGEMENT

(1.) This is defendants' second appeal against the judgment of affirmance passed by the learned 1st Additional Subordinate Judge, Patna, in appeal, arising out of a suit for redemption with further prayer for recovery of possession and mesne profits.

(2.) In view of the limited contentions raised before this Court, relevant facts may be shortly stated as follows: Survey Plot No. 7 measuring 52 decimals lying in village Kathautya, undisputedly, belonged to one Kuldeep Singh. Kuldip Singh, the owner in possession, gave this land, which is in dispute, in usufructuary mortgage to Chabilchand Singh, father of defendants 1 to 3, by a deed of Rehan (Ext. 3) dated 4-2-1921. On 2-5-1922 Kuldeep Singh sold the equity of redemption of the suit land along with other lands to Murat Singh, father of the plaintiffs. The plaintiffs alleged that, after purchase of the equity of redemption by them from Kuldip, there was a settlement between Murat Singh and the mortgagee under Ext. 3 that the liability to pay rent for the suit land would be of the mortgagee.

(3.) One Alakh Narain, an ex-intermediary, in whose share the suit land had exclusively fallen in the Colleotorate partition, brought Rent Suit No. 971 of 1935 against Kuldeep Singh for rent for four years from 1339 to 1342 Fasli. The purchaser of the equity of redemption Murat Singh, whose name was mentioned in the Batwara papers (Ext. 9), was not impleaded as defendant in this rent suit. The rent suit was decreed. The trial Court has found that the decree was obtained by suppressing all processes in the suit. This decree was put in execution by the ex-intermediary, abovenamed, in Execution Case No. 117 of 1937. The judgment-debtor was mentioned as Kuldeep Singh. According to the case of the defendants, there was an auction sale sometime in the year 1937 and the ex-intermediary himself purchased the holding including the suit land at auction. The defendants further alleged that the auction purchaser landlord remained in possession of the suit land for about two years and then in Jeth 1347 fasli he settled the suit land orally with the sons of the original mortgagee. The further case set up by the defendants was that Kuldeep Singh, the mortgagor, had redeemed the mortgage in question in Jeth 1930 fasli, a fact which was disputed by the plaintiffs.