RAM SARAN MANDAL Vs. SOMARI RAUT

JUDGEMENT

(1.) This appeal by defendant 1 is directed against the judgment and decree passed by the Subordinate Judge, Darbhanga, in title appeal No. 272 of 1943 modifying the judgment and decree of the Munsif, Darbhanga, passed in title suit No. 13 of 1947.

(2.) The facts leading to the institution of this second appeal may briefly be narrated as follows. On 27/6/1927, Somari Raut, the present plaintiff, gave in usufructuary mortgage 12 bighas 14 kathas 8 dhurs of raiyati land (described in schedlue 1 attached to the present plaint) for a sum of Rs. 1,000.00 to Ramkripal Rai, defendant 3. 2/5/1931 was the due date fixed for the payment of the amount advanced. According to the terms of the rehan bond, the rent was payable by the mortgagor, but in case he failed to do so, the mortgagee was directed to pay the same and realise it with interest at the time of the redemption of the rehan bond. On 13/8/1928, Somari Raut sold to Ramsaran Mandal 6 bighas 16 kathas 10 dhurs, according to the, plaintiffs, and 7 bighas 4 kathas 2 dhurs, according to defendant 1, out of the said holding of 12 bighas and odd for a sum of Rs. 1,722.00. Out of the consideration for the sale deed, Rs. 522.00 was paid to the vendor in cash, while the remaining Rs. 1,200.00 was left with the purchaser. Out of this amount of Rs. 1,200.00, Rs. 1,000.00 was intended to go to discharge the dues under the rehan bond dated 27/6/1927, and the sum of Rs. 200.00 was to be paid to Ramkripal Rai on the basis of hand-note. In the year 1931 the landlord instituted a suit for rent in respect of the entire holding. The suit was ultimately decreed and the entire (sic)lding was sold by auction on 25/4/1933, for a sum Rs. 285.00. Ramkripal Rai, the mortgagee, thereafter filed (sic) application under Order 21, Rule 90, Civil P. C., for setting aside the sale which gave rise to miscel-laneous case No. 83 of 1934. It was alleged by Ramkripal Rai, the mortgagee, that the mortgagor had purposely made default in payment of the rent and had brought about the auction sale in collusion with the landlord. On 9/4/1934. miscellaneous case No. 83 of 1934 was compromised, and the auction sale was set aside on the mortgagee paying the sum of Rs. 361.00 to the auction purchaser. It appears that there was further default in paying the rent of the holding resulting in rent suit No. 1351 of 1937 which also was ultimately decreed. In execution of the rent decree passed in the second rent suit the holding was again sold by auction on 17/5/1939, and was purchased by one Sarjug Singh. Somari Raut, the present plaintiff, thereafter filed miscellaneous case No. 153 of 1944 for setting aside the sale. On 18/12/1945, the miscellaneous case was allowed and the sale was set aside. The auction purchaser thereafter went in appeal which was numbered as miscellaneous appeal No. 7 of 1946. On 13/7/1946, this miscellaneous appeal was ultimately compromised on payment of Rs. 750.00 to the auction purchaser, Rs. 300.00 out of which had already been paid and Rs. 450.00 was payable by Somari Raut. In the meantime in March and May, 1944, notices on behalf of the plaintiff were served on defendant 1 calling upon him to redeem the rehan bond dated 27/6/1927. In those notices a number of claims for damages were put forward on behalf of the plaintiff. On 21/3/1944, a reply to those notices was sent on behalf of the defendant first party in which the allegations made against him were denied. It was further asserted that the delay in payment of the rehan money was not due to any fault on his part. It was stated that the mortgagee was not willing to give up possession on receipt of Rs. 1,000.00 only on the ground that further amount was due to him under the rehan bond in question. Defendant 1 had expressed his readiness to deposit Rs. 1,000.00 any moment. On 17/1/1947, the plaintiff deposited Rs. 1,000.00 to the credit of Ramkripal Rai, the mortgagee. Pour days later, that is, on 21/1/1947, Ramsaran Mandal, defendant 1, also deposited the sum of Rs. 1,000.00 to the credit of Ramkripal Rai vide chalan-exhibit C. On 14/2/1947, the plaintiff filed the present suit for a, number of reliefs. He claimed a declaration that the sale deed dated 13/8/1928, in favour of Ram Saran Mandal, defendant 1, had remained inoperative. He further claimed a decree against defendant 1 for a sum of Rs. 2,261.00This amount included the sum of Rs. 1,200.00 left with defendant 1 to redeem the rehan bond, the sum of Rs. 450.00 paid to the landlord, the sum of Rs. 361.00 paid by the plaintiff to the mortgagee by way of compromise in miscellaneous case No. 83 of 1934 and the sum of Rs. 250.00 representing the cost of the miscellaneous case No. 153 of 1944.

(3.) The suit was contested by defendant 1 of the first party who pleaded, inter alia, that he had made an attempt to redeem the usufructuary mortgage in time but the mortgagee would not accept that amount as he claimed some more amount due to him under the terms of the rehan bond. He further pleaded that the sum of Rs. 200.00 payable to Ramkripal Rai under a hand-note was not accepted by him on the ground of non-existence of any such hand-note. The amount was, therefore, paid back to the plaintiff. Defendant 1 asserted that by the sale deed dated 13/8/1928, 7 bighas 4 kathas and 2 dhurs out of the holding had been transferred to him and that it was intended to be operative. It was further pleaded by him that he could not get possession of the land sold to him due to the default of the plaintiff, and that he would bring a separate action for realisation of damages from him on that account. Defendant 1 alleged that the plaintiff was not entitled to the sum of Rs. 1,061.00 by way of damages. According to him, the suit was barred by limitation.