JANKI SAH Vs. GIRJA SINGH

JUDGEMENT

(1.) THIS appeal is by defendants first party. It arises out of a suit in which the plaintiff-respondents claimed redemption of a zarpeshgi deed, dated the 2nd January, 1905 executed by Nakchhed, their predecessor-in-interest, in favour of Jado Lal, the predecessor-in-interest of the appellants, for a sum of Rs. 1,000/-. It also included some lands which had been previously given in zarpeshgi by Nakchhed to Madari, brother of Hito Singh, by a deed, dated the 17th September, 1885. In the alternative, the plaintiff-respondents claimed a decree for Rs. 51,000/- as compensation in case it was found that they were not entitled to redeem the zarpeshgi bond. The plaintiff-respondents alleged that, though the mortgagee was liable to pay the rent of the mortgaged land to the landlord, he deliberately defaulted in payment thereof, and, in collusion with the agents of the landlord, got a suit for recovery of arrears of rent filed, which ended in a money decree, and, in execution thereof, an area of 16 bighas and odd of khata No. 152 was put to sale and purchased by Sitararn, son of Hito Singh, in the name of one Biltu.

(2.) ADMITTEDLY, the relief for redemption in respect of the property mortgaged by Nakchhed under the deed dated the 17th September, 1885 had become time-barred on the date the suit was instituted. The suit was, therefore, pressed only in respect of the property mortgaged under the deed dated the 2nd January, 1905, excluding that mortgaged by the deed dated the 17th September, 1885. The appellants did not dispute the execution of the zarpeshgi sought to be redeemed, nor did they dispute the allegations that the landlord had brought a suit for recovery of arrears of rent in respect of the land covered by the zarpeshgi, which was decreed, and the land was auction-sold and possession delivered to the auction-purchaser in Execution Case No. 1271 of 1916. They, however, claimed that the auction sale extinguished the right of redemption of the plaintiff-respondents. They denied that the liability to pay rent was on the mortgagee. They further averred that, though they were not bound to pay the rent, they paid the rent to the plaintiff-respondents. According to them, one Imamuddin purchased the interest of the landlord, and transferred an area of 12 bighas of the disputed land to Hito Singh by means of a sale deed dated the 12th May, 1922. Imamuddin also transferred 4 bighas 17 kathas 5 dhurs of land to Ramgulam Singh by virtue of a sale deed dated the 5th May, 1919. On the basis of the sale deed in his favour, Hito Singh filed a suit for redemption against the defendants first party, which was numbered as Title Suit No. 445 of 1923. The plaintiff-respondents were also impleaded in that suit. The suit was ultimately compromised and Hito Singh and others got possession of the land purchased by them from Imamuddin. Thus, according to the defendant-appellants, the mortgage in their favour was extinguished and could not be redeemed by the plaintiffs nor could they get a decree for compensation.

(3.) THE Court of first instance held that the plaintiff-respondents were not entitled to either of the two reliefs. It, accordingly, dismissed the suit in toto. THE Lower Appellate Court has held that the sale in execution of the decree for arrears of rent, which had the effect of a money sale, or the compromise in the redemption suit, did not affect the validity of the mortgage in question and the right of the plaintiffs to redeem. It further held that, in terms of the mortgage, the mortgagee-appellants were liable to pay the rent and the landlord had to bring the suit for recovery of arrears of rent as they defaulted in payment thereof. It also disbelieved the case of the appellants that they had paid the rent in respect of the mortgaged land to the plaintiff-respondents. It however, thought that, in view of the redemption of the mortgage by Hito Singh, the plaintiff-respondents could not redeem the mortgage and get back the property; but, as the sale took place on account of default in payment of rent by the appellants, the plaintiff-respondents were entitled to compensation at the rate of Rs. 2,000/- per bighas for the land mortgaged, excluding the land which was the subject-matter of the mortgage of 1885, after deducting the mortgage money of Rs. 1,000/-. From the judgment of the lower Appellate Court, it appears that the learned Additional District Judge was not inclined to believe the case of the plaintiff-respondents of any collusion between the landlord and the appellants.