BARIAR SINGH Vs. DURGA GIR

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree passed by the Additional District Judge of Shahabad reversing those of the third Additional Subordinate Judge of the same place.

(2.) The facts relevant for the decision of this appeal may shortly be stated as follows. The plaintiff filed the suit for redemption in respect of 3.93 acres of land situated in village Doma Dehri Tauzi No. 3309 of the Shahabad Collectorate. His case was that he and the defendants third party are the raiyats of this holding. On the 23rd of May 1932 an area of 3 bighas 15 kathas and 17 dhurs out of the entire holding of 3.93 acres was given in usufructuary mortgage by the plaintiff and defendant No. 7 to Ramnandan Gir, father of defendants 2 to 4, and Durga Gir, defendant No. 1. Defendant No. 5 is nephew of defendant No. 1. The properties given in rehan continued to remain in possession of the family of defendants 1 to 5. According to the terms of the rehan bond the rent and other charges in respect of the holding were payable by the rehandars. Sometime in 1934 the plaintiff came to know that on account of default of the mortgagees the holding had been advertised for sale at the instance of the landlord. The plaintiff was also in need of some more money to defray other expenses. He, therefore, approached defendant No. 1 with whom an agreement was reached, according to which the plff, executed a hand-note for Rs. 225/- in favour of defendant No. 5 at the direction of defendant No. 1 who agreed to discharge the entire decretal dues for which the holding had been advertised for sale. For satisfaction of the interest due on the handnote and for satisfaction of a portion of the principal amount the plaintiff gave the remaining area of the holding in rehan to defendant No. 1. In pursuance of the above agreement an application was filed in the certificate proceedings by defendant No. 1 for permission to deposit the entire money, but due to the fraud of the defendants 1st party the holding was sold and purchased in the name of defendant No. 5. The case of the plaintiff further was that in order to put obstacles in his way defendants 1 to 5 brought into existence a collusive sale deed dated the 5th of May 1943 in favour of defendant No. 6 in respect of the entire area. According to the case of the plaintiff he went to tender the rehan money to the mortgagees but as they did not accept it he was compelled to bring the present suit. In the suit the plaintiff claimed a relief for redemption of the entire area, or in the alternative for damages to the tune of Rs. 4200 from defendants 1 to 6.

(3.) The suit was contested by defendants first and second party. According to the case of the constesting defendants, it was the mortgagors who are liable to pay the rent etc., of the holding which was sold by auction due to the default of the mortgagors themselves. They denied the alleged agreement by which the defendants first party are said to have undertaken to pay the decretal amount and save the holding from being sold. They further pleaded that defendant No. 5 was separate from defendants 1 to 4 and that defendant No. 6 was not a farzidar for the rehandars. Defendant No. 6 claimed to be a bona fide purchaser for value of the holding in question. They further pleaded that the suit was fit to be dismissed.