ABDUL GHAFOOR Vs. PAHARIA

JUDGEMENT

(1.) This appeal by defendant 1 arises out of a suit for redemption brought by the plaintiffs respondents in respect of usufructuary mortgages, dated 14-6-27 and 16-2-28, exetuted by Kashi, father of plaintiffs 1 and 2, in favour of Ghulam Rasool, defendant 5, the predecessor-in-interest of the appellant.

(2.) The facts of the case may shortly be stated as follows: The recorded tenant Kashi Dusarh, father of plaintiffs 1 and 2 gave in Ijara 3B. 5K. out of 7 bighas equivalent to 4.80 acres, of Khatte 768 to Ohulam Rasool, defendant 5 on 14-6-27. In this bond the rental fixed for this portion bf the land was Rs. 13 out of Rs. 28, which was the rental for the entire holding. This rental of Bs. 13 was to be paid by the mortgagee to the mortgagor, or the landlord. Kashi executed another Ijara on 16-2-28 in favour of Ghulam Basool, defendant 5, in respect of IB. 10K. out of the remaining areas of Khata 768 with a rental of Rs. 6 which was to be paid by the mortgagee to the mortgagor himself. Thus under these two ijaras, 4B. 10K. out of 7 bighas with a rental of Rs. 19, out of Rs. 28 came in possession of Ghulam Basool, defendant 5 the mortgagee; and the balance of the land remained in possession of the mortgagor, Kashi who was to pay the balance of the rent. On 4-2-31 Ghulam Rasool, defendant 5, assigned both his mortgages to defendants 3 and 4. In 1933 the landlord of the holding obtained a rent decree for Khata 768 against the recorded tenant only, in 1934 the landlord started execution of this decree, and put up the holding to sale in execution of his rent decree. Defendants 3 and 4 the assignee on 19th November 1934, deposited the decretal amount under Section 170 of the Bihar Tenancy Act. Thereafter, they obtained possession of the entire holding under Section 171, Bihar Tenancy Act, and thus became statutory mortgagees of the entire holding. On 17th June, 1935, defendants 3 and 4 assigned their mortgage interest in favour of defendant 2, wife of the landlord, and she undertook to pay the rent of the holding for the years 1340 to 1342 fasli. Defendant 2 did not pay the rent and, therefore, in 1935 the landlord, husband of defendant 2, brought a rent suit for the years 1340 to 1342 fasli against the recorded tenant only. After obtaining the decree the landlord in 1936 started its execution, and put up to sale Khate 768. which was subsequently purchased by his wife defendant 2, at the auction. On 1st November, 1936, defendant 2 was given possession through the court in due course, over Khata 766 though of course she was then, and always had been at all material times, in actual physical possession since 17th June, 1935, when she took the assignment from defendants 3 and 4, the first assignees from the original mortgagee defendant 5. After remaining in possession of this land for about 'six years defendant 2 sold it on 12th June 1941 to defendant 1 the present appellant. The plaintiffs, who are the heirs of Kashi, the recorded tenant, brought the present suit for redemption on 9th September 1948.

(3.) Defendant 1 alone contested the suit. His defence was that the plaintiffs were liable to pay the rent and not defendant 1. or defendant 2: the decree obtained by the landlord in 1935 was binding on the plaintiffs, because they had knowledge of the delivery of possession in favour of defendant 2; and that the plaintiffs' right of redemption was extinguished, because of the sale of the disputed land in the rent execution.