BANSIDHAR PANDEY Vs. MASUDAN SINGH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff alleged that 3.60 acres of land recorded under khatas 175 and 176 of village Kadwa was the occupancy kasht land of Brahamdeo Singh and his brothers Judgaldeo and Radha Mohan. It appears that Braharhdeo Singh gave a usufructuary mortgage of the land as karta of the joint family for a sum of Rs. 1000/- for certain legal necessities to the plaintiff (sic). Later on there was a decree of the Central Co-operative Bank with regard to certain lands of Brahamdeo and his brothers, and in execution of the decree the Central Co-operative Bank purchased the property on the 4th May 1927, and obtained dakhaldehani. Thereafter Brahamdeo and his brothers parchased part of the lands hack from the Central Co-operative Bank. Certain other portions of the land purchased by the Central Co-operative Bank were sold to Bhrigun Singly including the mortgaged land in the present suit. The plaintiff purchased the entire area from Bhrigun Singh on the 16th April 1946 and came in possession. In Jeth 1353 Fasli, the plaintiff tendered the mortgage amount to the defendant, but the defendant refused to accept and there was a deposit of the amount in court under Section 83 of the Transfer of Property Act The plaintiff therefore, brought the present suit for redemption of the mortgage of the 7th June, 1925, with regard to 3.60 acres of land recorded in khatas 175 and 176.

(2.) The suit was originally brought for redemption of 3.21 acres of khata No. 175 regarding which the plaintiff had purchased equity of redemption 'by the sale-deed dated the 16th April 1946, from Bhrigun Singh. There was an objection taken by the defendant in the trial court that the mortgage deed comprised also an additional area of .39 acre. Thereafter the plaintiff amended the plaint and prayed for redemption of the entire area of 3.60 acres, including .39 acre of Khata No. 176. Both the trial court and the lower appellate court granted a decree for redemption to the plaintiff, but the learned Single Judge set aside the decrees of the lower courts and dismissed the suit of the plaintiff for redemption on the ground "that the owner of the equity of redemption for the area of .39 acre of khata No. 176 had not been impleaded in the mortgage suit In support of his decision the learned Single Judge of this Court relied upon Ramcharitar Sao v. Bawan Prasad Singh, AIR 1946 Pat 225.

(3.) On behalf of the plaintiff who has preferred this appeal under the Letters Patent the submission of the learned Government Advocate is that the learned Single Judge of the High Court has proceeded upon an erroneous view of the law and the plaintiff was entitled to a decree for redemption even though the owner of equity of redemption with regard to the area of .39 acre of khata No. 176 has not been impleaded.