RAM KISHUN PRASAD Vs. MANOHAR LAL GUPTA

JUDGEMENT

(1.) HEARD the parties and perused the impugned order dated 18.1.2006 which is subject matter of both these revision petitions.

(2.) THERE is no dispute on facts that Suit No. 64 of 1995 has been filed by Kanhaiya Lal Sah for a declaration that the property in suit which is subject matter of a deed of mortgage dated 5.10.1982 cannot be allowed to be redeemed by the mortgagor or person claiming under him because of lapse of stipulated time. The other suit is i.e. Title Suit No. 65 of 1995 has been filed by the petitioner Ram Kishun Prasad seeking relief of redemption of the mortgage said to have been executed by one Basudeo Prasad. By the impugned order passed in the aforesaid suits which are being heard together by 1st Munsif, Chapra, the prayer of opposite party no. 1, Mohan Lal Gupta to be added as intervenor - defendant in the suits has been allowed on the ground that the property in question was part of subject matter of a Partition Suit bearing No. 37 of 1966 between family members of Basudeo Prasad and against the judgment and decree passed in that suit, the intervenor -opposite party no. 1. has preferred First Appeal No. 517 of 1993 which is still pending in this court.

(3.) ON going through the impugned order it is noticed that the learned Munsif has allowed the prayer of the intervenor -opposite party no.1 only on the ground that he must be deemed to have some interest in the property which is subject matter of the mortgage deed because his First Appeal is still pending. However, the learned court below has failed to notice the law in its correct perspective which was cited before him and has been cited before this court also. The judgment of this court in the case of Lachhmi Narain V/s. Ganga Mahton, AIR 1964 Pat 44 clearly lays down that a suit for redemption cannot be converted into a title suit. Precisely that is being done in this case under the impugned order. Learned counsel for the petitioners has rightly placed further reliance upon another judgment of this court in the case of Sita Ram Sah V/s. Islam Mian, AIR 1978. Pat 25.