BALCHAND MAHTO Vs. MUNSHI LAL RAUT

JUDGEMENT

(1.) This appeal by defendants 1 to 3 is directed against the judgment and decree of the 1st Additional Subordinate Judge, Darbhanga, affirming those of the 1st Additional Munsif, Samastipur.

(2.) Some of the facts leading to the institution of the present suit may shortly be stated as follows. On 10-2-1921 Ram Charan Mahto executed a sudbharna bond in respect of 2 bighas 10 kathas of raiyati lands in favour of Dularchand Mahton and Balchand Mahton for a sum of Es. 175. On 18-5-1936, the present plaintiffs 1 to 6 purchased the equity of redemption, from the descendants of the original mortgagor who have been impleaded as defendants second party to the action. On 20-5-1941, the present plaintiffs 1 to 6 deposited Rs. 175/- to the credit of the mortgagees in accordance with the provisions of Section 83, T. P. Act, on the allegation that the previous tender by them had been refused by the mortgagees. On 13-4-1945, plaintiffs 1 to 6 sold to plaintiffs 7 to 9, 8 kathas out of the lands given in sudbharna. On 27-9-1945, they filed the present redemption suit against the sudbharnadars. In this suit they impleaded the descendants of the original mortgagor also as defendants second party.

(3.) Defendant 1 filed a written, statement contesting the claim of the plaintiffs. Another formal written statement was filed on behalf of the minor defendants According to defendant 1, the bond dated 10-2-1921, was in fact a sale deed and not a sudbhama bond, According to him, as there was no custom of transfer ability in the locality at that time, the sale deed was executed in the form of a and bharna bond simply to escape ejectment by the landlord. He further pleaded that in any event the mortgagees were entitled to compensation for trees planted by them a well sunk by them, and a house put up by them on the land given in Sudbharna. He further pleaded that in accordance with the terms of the bond in suit, the mortgagees were entitled to tack with the principal amount the entire arrears of rent for the mortgaged land paid by them with interest at the rate of Rs. 2-5-6 per cent per mensem.