LALNARAYAN PRASAD Vs. AMERESHWARI PD NARAIN SINGH

JUDGEMENT

(1.) The present appeal by the plaintiffs arises out of a suit for redemption filed by them for redemption of zerpeshgi bond dated the 19th September, 1916 executed by Chatur Bhagat alias Gopal Das in favour of D.M. Risdel, proprietor of Gopalpur Indigo Factory. The plaintiffs alleged that Gopal Das died without any kindred. His interest in the land mortgaged passed to the Mahanth of Risaura Math. According to the case of the plaintiffs, Chatur Das became Bairagi and became the Chela of Narsingh Das. He began to live in the Math itself. After he became the Chela of Narsingh Das, he was called Gopal Das. After the death of Narsingh Das, Gopal Das became the Mahanth of Bisaura Math and after his death his Curu-bhai Tulsi Das became the Mahanth, after whose death Bamparemi Das became the Mahanth, After the death of Ramparemi Das, his Chela Keshav Das (defendant No. 3) became the Mahanth of Risaura Math, who became entitled to the suit land. He transferred the suit land to the plaintiffs by virtue of the registered sale deed dated the 24th September, 1949. On the basis of their purchase the present redemption suit had been filed- It may be mentioned here that the plaintiffs had already filed title suit No. 130/17 of 1953/57. In that case the plaintiff thought that there was some formal defect, therefore, an application was filed by him for withdrawal of the suit under the provision of Order 23, Rule 1 of the Code of Civil Procedure with permission to file a fresh suit. The prayer of the plaintiff was allowed subject to payment of Rs. 20/- as cost to the contesting defendants by the 21st November, 1959. Unfortunately, the cost was not paid. On the 21st November, 1959, no step was taken by the plaintiff. The defendant filed hazri. Therefore, the prayer for permission to withdraw the suit with permission to file a fresh suit was refused and as no step had been taken on that date, the suit itself was dismissed for default. Thereafter a second suit for redemption has been filed on the 19th August, 1961.

(2.) The plaintiffs' suit was decreed by the trial court but the lower appellate court has reversed the judgment on two grounds, namely, that in the absence of any contract the property of Chatur Bhagat alias Gopal Das would pass to the landlord under Section 26 of the Bihar Tenancy Act and secondly the present suit is barred under the provisions of Order 9, Rule 9 of the Code of Civil Procedure. Hence, the plaintiffs have come up to this Court.

(3.) Learned counsel for the appellants contended before me that the judgment and the decree of the court of appeal below could not be sustained in law on the aforesaid two grounds. In my opinion, the contention of the learned counsel for the appellants is well founded and must be accepted.