UMRAON SINGH Vs. CHAKAURI SINGH

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment and the decree of the Additional Subordinate Judge, Sasaram, affirming those of the Additional Munsif, Second Court, there. The suit out of which this appeal arises was instituted by the plaintiffs-respondents for declaration of their title to and recovery of possession over 11.52 acres of land under khata No. 44 of village Dulahi, tauzi No. 2345/3. Plaintiff No. 1 was the proprietor of two annas eight pies interest in this tauzi recorded under khewat No. 1/6 and Bandhubind and others had a holding of 36.32 acres of land with an annual rental of Rs. 399 and odd under this khewat. On 31-8-1920, plaintiff No. 1 gave in rehan the rental of Rs. 126 out of the above rental of Rs. 399 and odd coverng an area of 11.52 acres of the aforesaid holding, which is the subject-matter of the suit, to one Sheogopal Singh, the ancestor of defendants 1 to 13, for a sum of Rs. 1400. Subsequently, plaintiff No. 1 himself purchased in an auction sale the remaining area of 24.80 acres of the above holding in execution of a decree for arrears of rent. During the continuance of the rehan, defendants 1 to 13 instituted a suit for recovery of arrears of rent against Bandhubind and others and obtained a decree in execution of which the rehani area, namely, 11.52 acres was purchased by defendant No. 14. According to the case of the plaintiffs, this purchase was made by defendants 1 to 13 themselves in the benami name of defendant No. 14. Plaintiffs 2 and 3 acquired by purchase from plaintiff No. 1 some shares out of this proprietary interest. Subsequently, the rehan was redeemed, and the plaintiffs came in possession of the above proprietary interest. According to their case, when they went to realise rent from Bandhubind and others, they were informed that the land for which they had come to realise rent had been purchased by defendants 1 to 13 in execution of their decree for arrears of rent and the same was in their possession. The plaintiffs claimed that the acquisition of the above area by defendants 1 to 13 amounted to an accession to the mortgaged property and they were, therefore, entitled to have possession over the same. Since, however, the defendants, did not give up their possession, the plaintiffs instituted a suit for the reliefs as stated above.

(2.) The suit was contested by defendant No-. 14 on the ground that he was the real purchaser and defendants 1 to 13 had no concern with the same and that, at any rate, the suit land could not be an accession to the mortgaged property. Defendants 1 to 3 and 5 appeared and filed written statement supporting the case of defendant No. 14.

(3.) Both the courts below concurrently held that the suit property was actually purchased by defendants 1 to 13 in the name of defendant No. 14 who was merely their benamidar. They also held that the suit property was an accretion to the mortgaged property and, therefore, the plaintiffs were entitled to recover possession of the same after paying to the mortgagees the cost of acquiring it. The suit was accordingly de-creed in favour of the plaintiffs, and, being aggrieved by that decree, the defendants have presented this appeal in this Court.