BIBI GANSHUL FATMA Vs. BADRI SINGH

JUDGEMENT

(1.) This is a plaintiffs' appeal arising out of a suit in which the main prayer was that a preliminary decree for rendition of accounts be passed in favour of the plaintiffs. The facts are these: Plaintiff No. 1 had a holding with an area of 5 bighas 8 kathas 16 dhurs of which the annual rental was Rs. 10-10-6. Out of this holding he gave 2 bighas 1 katha 17 dhurs in usufructuary mortgage to the defendants for a consideration of Rs. 335 by a document which was executed on the 2nd September 1927. Thereafter, the landlord obtained two rent decrees with regard to this holding. one of which was for Rs, 53-9-6 and the other for Rs. 75. The defendants as mortgagees deposited the amounts payable under the decrees and, in accordance with the provisions of S. 171 of the Bihar Tenancy Act, obtained possession of the remaining portion of the holding. The possession of the remaining portion of the holding was delivered to the defendants on the 18-1-1943 and on the 1st of September 1943 the plaintiff No. 1 sold the entire holding to the plaintiffs Nos, 2 & 3.

(2.) The plaintiffs' allegation was that the entire dues of the defendants had been satisfied from the income of the property and that after a proper accounting the plaintiffs would now be entitled to recover Rs. 1387-4-0 from the defendants. The main relief sought, as already pointed out, was a preliminary decree for rendition of accounts and a declaration to the effect that the usufructuary mortgage as well as the statutory mortgage created by the deposit under S. 171 of the Bihar Tenancy Act had been satisfied. It was also prayed that possession of the property be delivered to the plaintiffs Nos. 2 and 3.

(3.) The claim was resisted by the defendants, and their contention was that the plaintiffs were not entitled to the possession of the property until they deposited the entire amount which they were liable to pay to the defendants. The defendants further alleged that on a proper accounting it is they who would be entitled to get a sum of Rs. 1602-2-9 from the plaintiffs.