PHULCHAND SAH Vs. DINKAR PRASAD

JUDGEMENT

(1.) These two appeals have been heard together and will be governed by this judgment. The plaintiffs are the appellants in Second Appeal No. 1112 of 1948, while in Second Appeal No. 1677 of 1949 defendant 1 is the appellant. Though the appeals arise out of two different suits, the facts are more or less the same. These facts so far as they are relevant for the determination of the two appeals are shortly stated below.

(2.) The plaintiffs were Chowdhury Sah, his son and grand-sons--all members of a joint Hindu family. Chowdhury Sah is now dead and the appeal is prosecuted by his son and grand-sons, For the sake of convenience, I shall call them the plaintiffs. One Anant Lal Sah was the defendant second party. His father was Soukhichand Sah. The plaintiffs and Soukhichand Sah were joint till 1936 in which year there was a separation and the plaintiffs formed one joint family of which Chowdhury Sah was the 'Karta'. Soukhichand Sah, and after his death his son Anant Lal Sah, became the 'karta' of the other branch of the family represented by Soukhichand Sah, One Chakradhar Prasad and his sons formed a third joint Hindu family of which Chakradhar Prasad was the 'karta'. They were the defendants first party. Chakradhar Prasad, defendant 1, representing his family borrowed Rs. 1,725/- on the basis of a simple mortgage dated 25-2-1930 from the plaintiffs and the father of the defendant second party. In order to pay off the dues of that mortgage bond, defendant 1 executed a 'sudbharna' bond, which is the bond in suit, on 12-10-1936, for a consideration of Rs. 2,425/-. The bond was executed in favour of Chowdhury Sah and Soukhichand Sah. The rate of interest stipulated in the bond was 2 per cent. per month, and in lieu of payment of interest, the mortgagees were put in possession, the stipulation being that the mortgagees would appropriate or enjoy the usufruct of the land mortgaged in lieu of payment of interest. The total area of the land mortgaged was about 88 bighas, but there was a provision in the bond that in case of payment of a sum of Rs. 100/-, or multiples thereof, the mortgagees would release from possession 31/2 bighas of land for every hundred rupees, paid. It was the admitted case of the parties that out of the mortgage, money a sum of Rs. 600/- was paid by the mortgagor and 21 bighas of land were released. The balance of the mortgage money, that remained to be paid was Rs. 1,825/- only. The due date of repayment of this balance was Chait, 1347 M. S. which would correspond to some time in 1940-41. There was a stipulation in the bond that in case of default in payment of the balance of the prin-cipal amount, the mortgagees could either sue for the money remaining unpaid or continue to remain in possession of the mortgaged land. The balance of the principal amount was not paid by Chait 1347 M. S. and the mortgagees continued in possession cf about 67 bighas of land. It was alleged by the plaintiffs that on 14-4-1943, the defendant second party received from the mortgagor his share of the mortgage money and duly endorsed a satisfaction on the back of the mortgage bond. On the same date, the mortgagor (that is, the defendants first party) dispossessed the plaintiffs from the mortgaged lands without making any payment of the proportionate amount of mortgage money due to the plaintiffs. On 17-12-1943, the plaintiffs brought a suit claiming Rs. 998/- as the price of the paddy grown on the land in the year in which dispossession took place. This claim was based on a stipulation in the mortgage bond that in the event of dispossession by the mortgagor, the mortgagee would be entitled to the value of the crop grown on the land in the year in which the dispossession took place by way of damages. The learned Subordinate Judge who dealt with the appeal arising out of the suit in which the plaintiffs claimed Rs. 998/- has quoted the relevant clause in the 'sudbharna' bond and has given the effect of the clause in the following words:

(3.) On 26-7-1946 the plaintiffs filed another suit. This time they claimed their share of the principal mortgage money (Rs. 912-8-0) together with compensation or mesne profits for the years 1352, 1353 and part of 1354 M. S. The total claim laid was for a sum of Rs. 3,498/- and the plaintiffs wanted a mortgage decree for this amount. Both the suits were principally contested by the defendants first party. A number of pleas were raised by way of defence. In the present appeals we are concerned with those pleas only which raise questions of law. One of such pleas was that the claim in the second suit was barred under the provisions of Order 27 Rule 2, Civil P. C. There was also a plea that the dues under the 'sudbharna' bond had been satisfied by reason of an adjustment entered into by the parties on 14-4-1943. This plea of adjustment was not accepted by the Courts below, and it being a question of fact cannot be agitated in second appeal. The learned Additional Subordinate Judge who dealt with the second suit (Title Suit No. 29 of 1946) held that no part of the claim was barred under Order 2, Rule 2, Civil P. C. He accordingly allowed a mortgage decree for Rs. 912-8-0; but instead of giving compensation or mesne profits, he allowed interest at the rate of 9 per cent. per annum from the year 1352 M. S. till the date of the suit. Against this decision an appeal was preferred which was heard by the learned Additional District Judge of Purnea who by his decision dated 9-4-1948, held that the provisions of Order 2, Rule 2, Civil P. C., 'were a bar to the claim of the plaintiffs. In that view of the matter he allowed the appeal, dismissed the suit of the plaintiffs and also dismissed a cross-objection which the plaintiffs had filed with regard to their claim for compensation and mesne profits. Second Appeal No. 1112 of 1948 has been preferred to this Court from the aforesaid decision of the learned Additional District Judge of Purnea dated 9-4-1948.