SHEO SHANKER BHARTI Vs. KUSAMI DEVI

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for redemption with respect to half of the lands covered by the mortgage dated 16 -10 -1933 and for recovery of possession from defendant -first party or against defendant second or third party in case they are found to be in possession. The suit was dismissed by the Trial Court. The appeal also failed. Thereafter, this second appeal has been filed in this Court.

(2.) Shortly stated, the case of the plaintiff appellants is that they are purchasers of equity of redemption from Ugari Choudhary and Kamal Choudhary in respect of 3/4th share in the land covered by the mortgage. In order to appreciate the case of the plaintiffs some facts are necessary. They are as follows: The lands in question belonged to Ugri Choudhary to the extent of half and to Gango Choudhary and Kamal Choudhary to the extent of remaining half. It is said that on 16 -10 -1933 Ugri Choudhary and Gango Choudhary for himself and for his younger brother Kamal Choudhary executed a mortgage deed with respect to Schedule II land measuring I bigha 9 katha and 15 dhurs for Rs. 400 in favour of one Bhagalu Choudhary, father of defendant Nos. 1, 2 and 3. The aforesaid Bhagalu Choudhary came in possession as mortgagee. Although the due date was 30th Baisakh, 1343 Fasali (sometime in 136) but the lands were not redeemed. On the other hand, Gango Choudhary for self and for Kamal Choudhary executed a sale deed dated 9 -2 -1938 with respect to their share for equity of redemption in favour of defendant No. 1. The extent of their share was 14 kathas 171/2 dhurs. Ugri Choudhary and Kamal Choudhary also sold their equity of redemption in favour of the plaintiffs by a sale deed dated 5 -5 -1939. Thereafter on 8 -5 -1943 a deposit Under Section 83 of the Transfer of Property Act was made; a miscellaneous case was started. In that Misc. case, the objection raised by the defendant that Kamal Choudhary's share had already been transferred under the sale deed dated 9 -2 -1938 was upheld and a decree for redemption was passed in respect of only half share. It is said that after this decree the plaintiffs came in possession, but they were dispossessed on 19 -5 -1944 Under Section 171 of the Bihar Tenancy Act by the defendant -second party in an auction sale held in execution of a rent decree. The plaintiffs thereafter filed Title Suit No. 269/104 of 1945/47 for possession against the defendant -first party and the defendant -second party. The suit came upto this Court in Second Appeal No. 653 of 1949. The appeal was dismissed with certain findings and direction, It was held that the plaintiffs had interest only to the extent of half and that the defendant -second party were in possession Under Section 171 of the Bihar Tenancy Act as statutory mortgagees. But the suit was dismissed because, according to this Court the defendant -first party were still mortgagees and the plaintiffs could recover possession only if a suit for redemption was filed. Thereafter this suit was filed in the year 1968. The claim for redemption was contested by the defendant -first party alone. Their case, inter alia, was that the defendant -second party was in possession as a mortgagee Under Section 171 of the Bihar Tenancy Act with respect to 5 kathas of Plot No. 439 from east, 5 kathas 3 dhurs of Plot No. 1466 from west and 4 katbas 141/2 - dhurs of Plot No. 1467 from east which, in all, measured 14 kathas 17 dhurs, i. e. exactly half area of the land that was originally mortgaged on 16 -10 -1933. The name of the defendant -second party, according to them, was mutated. It was further said that the plaintiffs cannot get a decree for redemption unless the debt with due interest thereto Under Section 171 of the Bihar Tenancy Act was discharged.

(3.) The courts below came to the conclusion that the lands were in possession of the defendant -second party with which the defendant -first party had no concern. According to them, since the defendant -second party were pleaded as proforma defendant, therefore, no relief as against them could be granted. It was also held that although the plaintiffs under the sale deed dated 5 -5 -1939 had acquired 3/4th share in equity of redemption but only half of the interest passed to the plaintiffs as the share of Kamal Choudhary had already been sold in favour of defendant No. 1.