MAHADEO MANDAR Vs. LILO MANDAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs. The facts leading to the institution of the suit, out of which the present appeal arises, stated briefly, are these:

(2.) Goon Mandar or Mandal, father of plaintiff No. 1, and Dorki Mandal, defendant No. 14 of the fourth party, were two brothers. They had a holding of 9.72 acres, equivalent of 17 blghas 17 kathas and 14 dhurs, bearing Khata. No. 81, Khesra New. 67, 69 and 498, at an annual rental of Rs. 78-7-10%, which, was 'Subsequently reduced, by a rent reduction proceeding to Rs. 62-13-0 within the zamindari of defendants third party. On the 18th of June, 1926, the two brothers executed a usufructuary mortgage bond in favour of the father of defendant No. 4 of the first party for a sum of Rs. 312/- with respect to 2v26 acres of land, being a part of plot No. 498, along with some other lands. On the 7th of May, 1928, Dorki Mandal alone executed another usufructuary mortgage bond in favour of defendant No. 5 of the first party for a sum of Rs. 80/- with respect to 1.14 acres, equivalent to 2 bighas, of land appertaining to this holding. On the 10th of July, 1930, a third usufructuary mortgage bond was executed by the two brothers to the ancestor of defendants 6 and 7 of the first party with respect to 1.14 acres equivalent to 2 big-has, of land out of this holding for a sum of Rs. 80/-. On the 11th of July, 1932, they executed a fourth usufructuary mortgage bond for a sum of Rs. 711/-with respect to 5.98 acres of land out of the said holding in favour of defendant No. 1, who subsequently assigned the same to defendants 2 and 3 of the first party. According to the stipulations in the aforesaid mortgage bonds, the rent was payable by the respective mortgagees in proportion to the land mortgaged to them. There was, however, default in payment of the rent, as a result of which in, 1938 the landlords, defendants third party, instituted a suit for recovery of arrears of rent; being Rent Suit No, 1900 of 1938, in the Court of the Munsif of Banka against the two brothers, and in 1939 they obtained a decree. That decree was put in execution in the year 1940 in Execution Case No. 842 of 1940 against the two brothers. Some of the mortgagees raised objection to the sale of the mortgaged properties, and the executing Court directed that plot Nos. 67 and 69 and 3.02 acres of plot No. 498 should be sold in the first instance, and, if the decree was not satisfied by the sale of these lands, then the bharna lands measuring 5.98 acres, appertaining to plot No. 498, should be sold. Accordingly, plot Nos. 67 and 69 and 3.02 acres of plot No. 498 were sold first on the 26th of September, 1940; but as the decree was not satisfied, the rest of plot No. 498 was sold subsequently on the same date. In both the sales, the decree-holders landlords were the auction purchasers. They obtained delivery of possession through Court on the 15th of December, 1940 Thereafter, the lands were settled by the landlords auction-purchasers with defendants 7, 8, 10 and 11 of the second party. Defendant No. 9 of the second party purchased 5.98 acres of plot No. 498 on the 12th of April, 1949 from defendant No. 8, who had taken settlement of the same from the landlords, defendants third party.

(3.) According to the case of the plaintiffs, the mortgagees, who were liable to pay the rent, wit-fully defaulted in payment thereof, and got, in collusion with defendants second and third parties the suit filed. The plaintiffs allege that the decree was fraudulently obtained, and the sale and the delivery of possession were also void and illegal as having been obtained fraudulently in collusion with each other. They further allege that the defendants second party, who claim to have taken settlements, are mere benamidars of the mortgagees, who have taken settlements from the landlords in their farzi names. It is, accordingly, asserted that the right of redemption of the plaintiffs was not lost by the decree, the sale and the delivery of possession referred to above. In January, 1947, the plaintiffs tendered the mortgage money to the mortgagees, who refused to accept the same asserting that the plaintiffs had no right to redeem, as the lands were sold for arrears of rent. It is alleged on behalf of the plaintiffs that, thereafter, on enquiry they came to know of the fraudulent decree, sale and delivery of possession. They therefore, instituted a suit for redemption of the mortgages on declaration that the decree, the sale, the delivery of possession and the settlements were all fraudulent, void and illegal, and did not affect their right of redemption.