NARAIN MISHRA Vs. MAHANTH MISHRA

JUDGEMENT

(1.) These two appeals arise out of the same judgments of the two Courts below. Second Appeal No. 2357 of 1948 has been preferred by the defendant No. 1 to the suit to which these appeals relate. The other appeal (Second Appeal No. 108 of 1949) has been preferred by the defendant third party, the landlord of the lands in dispute. The dispute relates to two plots of lands described in the survey by plots 2620 and 2137 of khata No. 299 of village Bargaon covering an area of 7 bighas 4 dhurs. The lands in question admittedly were the kasht lands of one Chunchun Jha but the landlord in execution of a rent decree against the tenant got the holding sold and purchased it himself, and thereafter settled the lands with Kusheshwar, son of the said Chunchun Jha. In August 1921, Kusheshwar sold the lands to Jageshwar Jha, defendant No. 10, the defendant fourth party in the suit. This sale was recognised by the landlord & Jageshwar was recorded as a raiyat in the landlord's office. The plaintiffs' case is that this Jageshwar Jha was a benarnidar of the plaintiffs, and that the plaintiffs were the real purchasers of the disputed lands, and it appears that on the 25th of July 1928 Jageshwar Jha executed a deed of bajidawa or reljnquishrnent in favour of the plaintiffs in respect of these lands. The plaintiffs on the 3rd August 1928 executed a mortgage bond with respect to these lands in favour of two brothers Sudhakar Misra and Bidyakar Misra for a sum of Rs. 800/-. Sudhakar is defendant No. 2 in the suit and Bidyakar being dead, his heirs and legal representatives defendants 3 to 8 were made parties to the action, defendant No. 7, Bijender, being one of the heirs. The mortgage in question related not only to these lands but to certain other lands which were hypothecated to the mortgagees for the payment of the debt. The plaintiffs alleged that subsequently the mortgagees were put in possession of the mortgaged property, and, out of the consideration for the mortgage, a sum of Rs. 50/- was left in the hands of the mortgagees in order to pay off the arrears of rent due to the landlord. The facts, however, show that the landlord's dues remained unpaid, and in consequence the landlord sued for rent the recorded tenant Jageshwar Jha, obtained a decree in September 1929 and in execution of that decree, the lands were sold and purchased by the appellant, defendant No. 1. The plaintiffs allege that the liability to pay the rent was on the mortgagees and the plaintiffs were unaware of the rent suit decree or the execution proceedings or the sale held thereunder. They, therefore, said that they being ignorant of these proceedings in due course paid up the mortgage dues on the 20th of January 1939, to the mortgagees who accepted the payment and even delivered possession of the mortgaged property to the plaintiffs including the disputed lands; but in November 1941, the mortgagees began to interfere with the possession of the plaintiffs and claimed the lands in suit. It is only then that the plaintiffs on enquiry discovered, according to the allegation in the plaint, that a rent suit had been filed by the landlord in which a decree was obtained and in execution whereof the lands had been sold and purchased by the defendant No. 1. The plaintiffs challenge the rent suit, the decree and the execution proceedings as being collusive and fraudulent to defeat their interest; and they further allege that the lands were purchased at the auction sale by the mortgagees themselves in the name of the defendant first party who is their relation. On these allegations the plaintiffs filed the suit for declaration that they were not bound by the decree in the rent suit or the sale in execution thereof and for confirmation of possession, or, in the alternative, for recovery of possession of the disputed lands. They also prayed that in ease it was held that the mortgage bond, dated the 3rd of August 1928, had not been redeemed, the plaintiffs should be allowed to redeem the same.

(2.) The suit was contested, by the defendant No. 1 -- the auction-purchaser, defendants 3 to 7 of the second party -- the mortgagees, and the defendant third party -- the landlord. Defendant No. 2 of the second party does not appear to have entered any contest. These various sets of defendants filed separate written statements. The defendant first party contended, 'inter alia', that the plaintiffs had no cause of action; that Jageshwar Jha, the recorded tenant was not the benamidar of the plaintiffs, that the mortgagees were not in possession of the lands in suit, and there was 310 liability or default on their part to pay the landlord's rent; that the rent suit decree and the execution proceedings which followed were legal and valid; that the auction purchase by this defendant was in his own rights and not as a benamidar for the mortgagees; and that all the allegations of the plaintiffs to the contrary were false and unfounded. He also contended that the suit was barred by limitation. The defendants 3 to 7 denied the alleged redemption of the mortgage bond by the plaintiffs and they further supported the case of the defendant first party that he was not a benamidar of the mortgagees. The landlord, defendant third party, stated that the suit had been properly instituted by him against the recorded tenant and that there was no collusion or fraud on his part, arid therefore the plaintiffs had no right to sue this defendant.

(3.) The learned Munsif who tried the suit dismissed the same disbelieving almost the entire case of the plaintiffs in a fairly elaborate judgment. He held that Jageshwar, defendant fourth party, was not the benamidar of the plaintiffs. He also disbelieved the case of the plaintiffs that by a subsequent oral agreement the mortgagees had come in possession of the mortgaged property and were entitled to satisfy the interest due out of the usufruct or that any sum of money was left with the mortgagees for payment of the outstanding dues of rent to the landlord, or that there was any liability on the part of the mortgagees to pay the landlord's rent. He held, on the contrary, that the mortgagees were not bound to pay the rent and they did not make any default, that there was no fraud in the rent suit or in the execution proceedings either on the part of the landlord or on the part of the mortgagees, and that the sale in execution of the decree in favour of the defendant No. 1 was binding upon the plaintiffs and conveyed a good title to the purchaser -- the defendant No. 1 who was not a benamidar of the mortgagees. He also found that the plaintiffs' suit was barred by limitation. In regard to the allegation of the plaintiffs that the mortgage bond had been redeemed by payment on the 20th January 1929, he found in favour of the plaintiffs, but at the same time he held that the plaintiffs had not come into possession of the disputed lands as alleged by them.