THAKUR PANDEY Vs. BUNDI OJHA

JUDGEMENT

(1.) This appeal by defendant No. 1, arises out of a suit filed by the plaintiff-respondent, under the provisions of Order XXI, Rule 63 of the Civil P, C. for a declaration that the property fully described at the foot of the plaint purchased by him in court sale, was not liable to be sold in the mortgage decree obtained by defendant No. 1. The relevant facts, briefly stated, are as follows :-- The plaintiff had purchased 3 bighas 6 kathas and 2-1/2 dhurs of land appertaining to plot No. 2843 and others under khata Nos. 452 and 395, being the other half of the disputed lands, from Loknath Tiwary by a sale deed dated 26-11-1938 disposing of his half share in the 8 bighas and odd land. The remaining half share was sold by Khublal Tiwary, his uncle, to Ganga Bishun Tiwary (defendant No. 2). Defendant No. 2 first created a mortgage over the property in favour of the plaintiff and subsequently sold the land to one Jumman Mian, however, leaving in deposit the mortgage money, by a registered deed of sale dated 4-6-1938.

(2.) These are the admitted facts of this case; Raghunandan Tiwary and Khublal Tiwary were brothers. They had equal interest in a piece of land measuring 6 bighas 12 kathas and 5 dhurs situated in village Belsa, half of which is the subject matter of the suit, Raghunandan had two sons, Loknath and Uma Dutt, Uma Dutt, however, died leaving his widow Rati Kuer, Loknath and Rati Kuer sold their half share to the plaintiff on 26-11-1930 and according to the plaintiffs case, he has been coming in possession over the land in question by virtue of his purchase.

(3.) Khublal, the other co-sharer of the half interest, also sold his share to defendant No. 2 as already said earlier Jumman Mian, the purchaser from defendant No. 2 died leaving behind three sons and a widow. The sons are defendant Nos. 4 to 6 and the widow is defendant No. 7 in the suit. The mortgage suit brought by the plaintiff on the basis of the simple mortgage bond was decreed and defendant Nos. 4 to 7 paid up the dues and thus satisfied the decree.