ISAR NONIA Vs. KARINAM PANDEY

JUDGEMENT

(1.) The paramount question to be considered in this case is whether the provisions of Section 90 of the Trusts Act can be made applicable on the facts and circumstances of this case, and whether the mortgagees, who are represented by defendants 1 to 15, could be directed to make over possession of the lands, which they purchased from a purchaser at court auction sale, to the plaintiffs.

(2.) The plaintiffs brought the suit, giving rise to this appeal, (1) for a declaration that the rehan bonds have been redeemed and that the plaintiffs are entitled to retain possession of the properties entitled in schedules A and B and to get possession of the properties entered in schedules C and D of the plaint; (2) on the aforesaid declaration, for confirmation of possession of the plaintiffs, together with defendant No. 19, over the properties mentioned in schedules A, B, C and D and in case they be held to be not in possession, a decree for possession may be given; and (3) for a decree for mesne profits as per accounts given in the plaint and also for further mesne profits till the date of recovery of possession.

(3.) According to the plaintiffs' case, Baldeo Nonia had five sons. The plaintiffs are the four sons and defendant No. 19, Rambeyas Nonia, is the fifth son. Their case is that, on 1-12-1926, plaintiffs 1 and 2 and defendant No. 19 (who will hereafter be referred to as Rambeyas Nonia) had executed a rehan bond for Rs. 2,230/- in favour of Mahdeo Pandey (since deceased) and Rajnath Pandey (defendant No. 2) in respect of schedule A lands (Exhibit 2) measuring 13 bighas and 14 kathas. On the same date, the very same mortgagors executed another bond in favour of the same mortgagees for Rs. 2,000/- in respect of properties mentioned in schedule B (Exhibit 2(a)) measuring 8 bighas and 7 kathas. The mortgage bonds recited that the mortgagees were to pay the rent. On, 6-6-1928, another rehan bond was executed by plaintiff No. 2 and Rambeyas in favour of one Digamber Ahir in respect of 8 bighas mentioned in schedule E for Rs. 1,600/- (Exhibit E (1)On 10-6-1929, a simple mortgage bond was executed by plaintiff No. 1 and Rambeyas in favour of defendant No. 1 for Rs. 900/- (Exhibit N). On 28-6-1933, another rehan bond by plaintiffs 1, 3 and 4 in favour of Digambar Ahir was executed in respect of 2 bighas 10 kathas for Rs. 2003/4- (Exhibit E). One more mortgage bond was executed by Rambeyas in favour of Mossamat Sarifa in respect of 63 acres for Rs. 136 (Exhibit E (2)) on 13-11-1933. On 22-6-1935, Rambeyas executed a hand-note for Rs, 100/- in favour of the same Digambar Ahir (Exhibit M). On 12-9-1935, the superior landlord, the Maharaja of Dumraon, brought a rent suit No. 751 of 1935, against Rambeyas and the plaintiffs for recovery of arrears of rent amounting to Rs. 189/11/9 for years 1339 and 1340 Fasli. On 7-11-1935, the suit was decreed; and, in Execution Case No. 1915 of 1935, the holding was sold at court auction on 4-1-1936. The entire khata No. 14 measuring 23.07 acres was sold for Rs. 236/- and was purchased by one Mahesh Nonia, husband of defendant No. 16, and delivery of possession was given on 31-5-1936. This Mahesh Nonia was the wife's brother of Rambeyas. Thereafter, on 9-6-1936, this Mahesh Nonia, the auction purchaser, executed a sale deed in favour of Ramekbal Pandey, defendant No. 12, one of the mortgagee defendants, in respect of a portion of khata No. 14, namely, portions of plots 200, 38 and 113, the total area being 16 bighas. The sale deed is exhibit D, which mentions the consideration money as Rs. 500/- The plaintiffs' case further is that, on the 15th Jeth, 1353 Fasli, corresponding to 1946, Rambeyas and the plaintiff No. 1 paid the mortgage money as per rehan bonds exhibits 2 and 2 (a) to defendant No. 1, one of the mortgagees, who, on receiving payment, made an endorsement on the back of exhibit 2(a). The endorsement is exhibit 1. It is said that the plaintiff No. 1 and Rambeyas thought that endorsements were being made on both the bonds, but later on it appeared that defendant No. 1 had made endorsement only on one of those bonds which had been stitched together, and the bonds were made over to the plaintiff No. 1 and Rambeyas. Having redeemed the rehan bonds, it is said, the plaintiffs went to plough the lands on the 12th Asarh 1353 Fasli, but there was interference by the defendant-mortgagees, and they had to leave the field, and hence the suit on 29-7-1946.