SHIBNARAIN MANDAR Vs. RAMAUTAR SINGH

JUDGEMENT

(1.) Some of the important facts leading to the institution of this second appeal may shortly be stated as follows: One Bihari Belaar had a number of raiyati holdings included within knataa Nos. 15, 52, 64 and 66 situated in tola Beldari appertaining to village Barahmania, district Monghyr. At the time of partition oi the family properties, Bihari Beldar and his two sons got 12 annas share in the raiyati lands appertaining to the above mentioned khatas, and his third son got 4 annas share in those lauds. Before the date of partition Bihari and his sons had executed on 4-6-1914, . a usufructuary mortgage bond (Ex. B) in favour of Makhan. Choudhary in respect of some of their lands. On 9-8-1913, Makhan Choudhary assigned his right in favour of Kailash, the present defendant No. 7. After partition in the family of Kailash the sud-bhama rignt was allotted to share of defendants 9 and 10 of the present suit. On 21-5-1925, Bihari and his two sons gave in usufructuary mortgage to one Kartic Mandal most of the plots covered by the usufructuary mortgage bond (Ex. B). On 2C-4-1926, Jagdam, defendant 6, son of Kartic Mander, assigned his right in favour of the plaintiff On 14-6-1946, the plaintiff instituted the present suit for realisation of the amount lent under the mortgage bond dated 21-5-1925, by sale of the mortgaged properties. It was alleged by him that by virtue of the said mortgage bond the predecessors-in-interest of the plaintiff and after the assignment in his favour the present plaintiff had remained all along in possession of the mortgage properties until his possession was disturbed on the 30th of Baisakh 1353 Fasli which led him to institute the present suit. In the plaint it was alleged that the cause of action arose on the 30th of Jeth 1341 Fasli, the day on which the payment of the amount was stipulated and on the 30th of Baisakh 1353 Fasli when the plaintiff was dispossessed.

(2.) The suit was resisted by defendants 9 and 10 who pleaded, inter alia, that the usufructuary mortgage bond dated 21-5-1925, was merely a sham document, and it had not created any right in Kartik Mander. It was further pleaded that Bihari and his two sons had no right to give in usufructuary mortgage the plots which had already been so given to Makhan Choudhary by the usufructuary mortgage bond dated 4-6-1914. Thus the defendants also pleaded that the present suit was barred by limitation. On these and other pleas they asserted that the suit was fit to be dismissed.

(3.) The learned Munsif who tried the suit came to the conclusion that the usufructuary mortgage bond dated 21-5-1925, was a genuine document. He, however, held that neither the plaintiff nor his predecessor-in-interest was ever in possession of the lands included in the usufructuary mortgage bond in favour of Kartik Mander (Ex. 2)). On the question of limitation, the trial court came to tne conclusion that the suit having been filed within 12 years from the date on which the amount was covenanted to be paid was not barred by limitation. On these findings the suit was decreed on contest against defendants 9 and 10 ex parte against the rest.