RAGHUNATH PRASAD CHOUDHARY Vs. GYANI RAI

JUDGEMENT

(1.) In the suit, out of which this appeal arises the plaintiff prayed for a declaration of title and recovery of possession of 1 bigha 15 kathas of land located in Khata No. 46 in village Turki Khararoo. The land was recorded in the Survey record-of-rights in the name of Musammat Gauri. On the 18th May, 1906, the disputed land was put up for sale in execution of a decree for rent against Musammat Gauri and was purchased by the plaintiff. The auction sale was eventually confirmed on the 25th June, 1906. The lower appellate Court has, however, found that there was no delivery of possession and the plaintiff was never in possession of the disputed land prior to the institution of the suit On the 19th January, 1906, Musammat Gauri and Tilakdhari had executed a usufructuary mortgage bond in favour of the father of the defendant. It appears that Thaga was the heir of Musammat Gauri, and on the 13th December, 1944, Thaga conveyed the equity of redemption to the defendant by virtue of a registered deed of sale (Ext. D). By virtue of this purchase the defendants became the absolute owners of the disputed property. The finding of the lower appellate Court was that the title of the plaintiff acquired by auction purchase was not extinguished, and although he was not in possession of the disputed land he was entitled to get possession after redeeming the mortgage in favour of the defendants. The matter was taken to the High Court in second appeal on behalf of the defendants. It was argued before the learned Single Judge on behalf of the defendants that there was no delivery of possession taken by the plaintiff, and as the plaintiff was out of possession for more than twelve years the suit was barred by time. This argument was accepted by the learned Single Judge, who was of the view that the suit must be dismissed, and the plaintiff was not entitled to a decree for redemption.

(2.) On behalf of the plaintiff who has preferred this appeal under the Letters Patent, the argument was put forward that the plaintiff was entitled to a decree for redemption because the defendants continued as bharnadars up to the year 1944 and the suit was brought in the year 1951, and, therefore, the suit for redemption is not barred and the title of the plaintiff to redeem is not extinguished. In our opinion the argument put forward by learned counsel for the appellant is well founded and must be accepted as correct. But the difficulty is that we cannot grant a decree for redemption in favour of the plaintiff unless there is an amendment of the plaint and there is an express relief for redemption made in the plaint As requested by learned counsel for the appellant we have now allowed the application of the appellant for amending the plaint. The defendant respondents have also filed an additional written statement in this Court with regard to the prayer of the plaintiff for a decree for redemption. The defendant-respondents have objected that the prayer for redemption cannot be allowed because there is some kind of estoppel as against the plaintiff, and in any case even if the decree for redemption is allowed the defendants are entitled to interest as given in the schedule to the additional written statement. In view of the additional pleadings now brought on the record by both the parties we think that the case should go back to the trial Court for framing an additional issue with regard to the prayer of the plaintiff for redemption and for deciding that issue in accordance with law.

(3.) For these reasons we hold that this appeal under the Letters Patent must be allowed and the decree of the learned Single Judge dated the 26th September, 1957, as also the decree of the lower appellate Court dated the 17th July, 1953, and of the trial Court dated the 10th December, 1952, should all be set aside and the case should go back to the trial Court for framing fresh issues and deciding the case in accordance with law and in accordance with the observations made above. We accordingly allow this Letters Patent Appeal. The cost of this appeal will abide the result of the appeal after remand.